The Editor's Bag municipal law of the United States are made by the Constitution, which excepts certain matters of an international de scription from the otherwise unimpaired division between federal and state powers, depriving the states of exclusive juris diction of the interests secured to them by the Constitution, as the delegation of a dominant jurisdiction to Congress and the prohibition of the states from making treaties shows. But the restric tion thus imposed on the municipal law by the Constitution is only general, and specific restrictions are left to the discretion of Congress, which may at once determine and apply its treatymaking power. While no treaty has ever been held unconstitutional by any court of the United States, the nature of our polity seems to presuppose a right in the Supreme Court to pronounce a treaty unconstitutional as in conflict with the municipal fundamental law, though it cannot void a statute as conflicting with international law. In the Cherokee Tobacco case (11 Wall. 616) it was said obiter: "It need hardly be said that a treaty cannot change the Constitution, or be held valid if it be in violation of that instrument." A right in the Supreme Court to hold a treaty unconstitutional as infringing the reserved rights of the states seems to be taken for granted. "When ever ... an Act of Congress would be unconstitutional, as invading the re served rights of the states, a treaty to the same effect would be unconstitu tional." This statement, in Prevost v. Greenaux (19 How. 1) is true in a gen eral sense, for Congress has no right to alter the system of government pre scribed by the Constitution. It is not however a sufficiently concise statement of the rule it seeks to express. The rights reserved to the states are qualified,
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in the Constitution, by the jurisdiction vested in Congress over international matters, and when Congress legislates on such matters without substantially affecting the internal administration of the state its act is not open to attack, though a similar statute not applying to international matters would be ultra vires. The remarks of Chief Justice Taney obiter, in the Passenger cases (7 How. 283) are thus open to question : "If the people of the several states of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might deem dangerous to its peace, or likely to prove a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any per son or description of persons against the consent of the state, would be .an usurpation of power which this court could neither recognize nor enforce." This is a rather extreme illustration, which reflects a states' rights attitude toward immigration laws rather alien to current modes of thought. The ques tion would resolve itself into one of the degree to which the constitutional autonomy of the state is impaired by treaty provisions; if it is not materially impaired it seems as if the treaty should stand. The rule expressed in DeGeofroy v. Riggs (133 U. S. 258) seems to have been a sound one: "It would not be contended that it [the treaty power] extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter without its consent. But with these exceptions it is not perceived that there is any limit to the questions which can be adjusted touching any matter which
