Tuesday, October 10, 2006

My....GOD!

Under United States Code Title 16, Chapter 7, Subchapter II, the Migratory Bird Treaty Act of 1918 is the United States legislation implementing the convention between the U.S. and Great Britain (for Canada). The United States subsequently entered into similar agreements with three other nations (Canada, Mexico, Japan and Russia) to protect migratory birds. The statute makes it unlawful to pursue, hunt, take, capture, kill or sell birds listed therein ("migratory birds"). The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs and nests. Over 800 species are currently on the list.
-http://en.wikipedia.org/wiki/Migratory_Bird_Treaty_Act_of_1918

In Missouri v. Holland, 252 U.S. 416 (1920), the United States Supreme Court held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. The case revolved around the constitutionality of the implementing legislation, the Migratory Bird Treaty Act of 1918.

Previously, Congress had passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory and successfully sued to have the law declared unconstitutional, on the basis that the United States Constitution gave Congress no enumerated power to regulate migratory bird hunting, and hence the regulation of such hunting, if there were to be any, was the province of the states according to the Tenth Amendment.

Congress, dissatisfied with this ruling, then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty, was subsequently ratified and came into force, and required the Federal Government to enact laws regulating the capturing, killing, or selling of the protected migratory birds,[1] an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918.

The State of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic. In an opinion by Justice Oliver Wendell Holmes, Jr., the Supreme Court held that the law was in fact constitutional, noting that the treaties clause of the Constitution (Article VI, clause 2), sometimes known as the "supremacy clause," makes treaties the "supreme law of the land", co-equal in status to the Constitution itself, a finding that trumps any state concern with regard to the provisions of any treaty, and further implying that treaty provisions were not subject to questioning by the States under the process of judicial review.


Many persons saw this ruling as a dangerous implication that Congress or the President could essentially amend the Constitution by the means of treaties with other countries that would abrogate the rights of the people or the States otherwise protected by American law. These concerns came to a head in the 1950s, when the Old Right Conservatives supported the so-called Bricker Amendments, which nearly passed Congress with the required two-thirds majority.
-http://en.wikipedia.org/wiki/Missouri_v._Holland

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