Zschernig v. Miller/Concurrence Stewart

by Potter Stewart

Mr. Justice STEWART, with whom Mr. Justice BRENNAN joins, concurring.

While joining the opinion of the Court, I would go further. Under the Oregon law involved in this case, a foreigner cannot receive property from an Oregon decedent's estate unless he first meets the burden of proving, to the satisfaction of an Oregon court, that his country (1) grants to United States citizens a 'reciprocal right' to take property on the same terms as its own citizens; (2) assures Americans the right 'to receive payment' here of funds orginating from estates in that country; and (3) gives its own citizens the 'benefit, use or control' of property received from an Oregon estate 'without confiscation, in whole or in part.' The East German claimants in this case did not show in the Oregon courts that their country could meet any one of these criteria. I believe that all three of the statutory requirements on their face are contrary to the Constitution of the United States.

In my view, each of the three provisions of the Oregon law suffers from the same fatal infirmity. All three launch the State upon a prohibited voyage into a domain of exclusively federal competence. Any realistic attempt to apply any of the three criteria would necessarily involve the Oregon courts in an evaluation, either expressed or implied, of the administration of foreign law, the credibility of foreign diplomatic statements, and the policies of foreign governments. Of course state courts must routinely construe foreign law in the resolution of controversies properly before them, but here the courts of Oregon are thrust into these inquiries only because the Oregon Legislature has framed its inheritance laws to the prejudice of nations whose policies it disapproves and thus has trespassed upon an area where the Constitution contemplates that only the National Government shall operate. 'For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.' Chinese Exclusion Case, 130 U.S. 581, 606, 9 S.Ct. 623, 630, 32 L.Ed. 1068. 'Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.' Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 402, 85 L.Ed. 581.

The Solicitor General, as amicus curiae, says that the Government does not 'contend that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign relations.' But that is not the point. We deal here with the basic allocation of power between the States and the Nation. Resolution of so fundamental a constitutional issue cannot vary from day to day with the shifting winds at the State Department. Today, we are told, Oregon's statute does not conflict with the national interest. Tomorrow it may. But, however that may be, the fact remains that the conduct of our foreign affairs is entrusted under the Constitution to the National Government, not to the probate courts of the several States. To the extent that Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633, is inconsistent with these views, I would overrule that decision.