I spent the end of last week at the University if Missouri-Columbia, attending a great conference organized by Peggy McGuinness, on the (in)famous case of Missouri v. Holland. There, of course, Justice Holmes wrote for the Supreme Court, holding that Congress could enact legislation otherwise beyond its constitutional authority, in furtherance of a duly-enacted treaty obligation.
With a great line-up of panelists and a fascinating set of underlying issues to explore, we had what I thought was a fantastic day-and-a-half of discussion. In particular, and perhaps appropriately, we spent a substantial amount of time assessing the continuing significance of the decision, given the dramatic expansion of Commerce Clause authority since it was handed down in 1920. There is, of course, the “loaded-gun” notion that the very availability of the expansive authority invited by the decision constitutes a substantial threat. Likewise, one might question whether the Court’s decisions in Lopez and Morrison augur a potential revival of Missouri v. Holland as constitutional doctrine.
From my perspective, though, the most fascinating element of our discussions concerned the ways in which Missouri v. Holland might be significant, regardless of its jurisprudential force. I was struck, for example, by one participant’s recollection of an occasion on which U.S. treaty negotiators’ attempts to assert constitutionally grounded federalism constraints as a basis to resist a proposal by their foreign interlocutors were parried with invocations of Missouri v. Holland.
More broadly, I was interested to think about what continuing significance the decision has, for how we conceptualize the relationship of international, national, and state law. In the scheme of jurisdictional interaction exemplified by Missouri v. Holland, international law functions as a kind of trump card – an Ace available to the federal government to coerce state authorities. If Missouri no longer captures the political economy of U.S. federal-state relations, however, as I argue in my submission to the symposium, we might do well to reconsider that traditional conception of international law as a threat to state authority, and federalism more broadly.