The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power

Abstract

Missouri v. Holland was to the federal treaty power what McCulloch v. Maryland is to its legislative power. In McCulloch, Chief Justice Marshall wrote that "we must never forget that it is a Constitution we are expounding. In Holland, Justice Holmes interpreted the treaty power in the spirit of Marshall's dictum by adopting a functional, adaptivist approach to its relationship to the Tenth Amendment. Referring to the degree to which the federal government may make treaties that trench upon what might ordinarily be traditional state functions, he wrote, "We must consider what this country has become in deciding what that Amendment has reserved." Holland was therefore far more than what generations of law students might recall as the curious case about migratory birds written by the Supreme Court's most eminent Justice since Marshall; it was a case, like McCulloch, that would have vindicated their professors in claiming that we live today, not only in Marshall's America but in Holmes's too. The Constitution's remarkable durability and resilience over 230 years should be ascribed in no small part to the prescient spirit of pragmatism that infuses cases like McCulloch and Holland.