![handle is hein.journals/jclon16 and id is 1 raw text is:
TREATY POWERJUSTIFICATIONS FOR EARLY FEDERAL
TRADEMARK LAWS
Zvi S. Rosen*
In 1920, in one of his best-known opinions, Justice Oliver Wendell
Holmes, Jr. declared that [i]f [a] treaty is valid there can be no dis-
pute about the validity of the statute under Article 1, § 8, as a neces-
sary and proper means to execute the powers of the Government.
This opinion made clear that Congress posesses an independent
treaty power pursuant to the power to make treaties and the
Necesssary and Proper Clause of the Constitution to enact legislation
executing such treaties even if it would otherwise lack authority un-
der its powers enumerated in Article 1, Section 8 of the Constitution.
Missouri v. Holland has remained definitive on the subject, even if the
controversy surrounding this holding has never entirely subsided.3 In
the past decade, controversy over this holding has resurfaced with a
vengeance, spurred on by the work of Nicholas Rosenkranz.4 In the
coming Term, the Supreme Court will be called upon to reexamine
the Missouri v. Holland decision in Bond v. United States.5
Examples of exercises of the treaty power before Missouri v. Hol-
land are rare, but both John Cross and I have discussed the use of the
treaty power to pass the 1881 Trademark Act in the wake of the judi-
cial invalidation of the first federal trademark law.6 Although these
* Zvi S. Rosen is an Adjunct Assistant Professor at the New York Law School, and a member
of the bars of New York and New Jersey. He would like to thank everyone who provided
advice and comments on this piece.
1 Missouri v. Holland, 252 U.S. 416, 432 (1920).
2 As used in this article, the Treaty-Making Power refers to the power of the government
to make treaties with foreign nations, while Treaty Power refers to the congressional
power to make laws based upon the Necessary and Proper Clause of the Constitution,
calling into effect treaties made pursuant to the Treaty-Making Power.
3 Charles A. Lofgren, Missouri v. Holland in Historical Perspective, 1975 SuP. CT. REV. 77
(1975).
4 Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REv. 1867 (2005).
5 Brief for Petitioner, Bond v. United States, No. 12-158, cert granted, 133 S. Ct. 978 (Jan.
18, 2013). This marks the second time the Supreme Court will hear Carol Ann Bond's
case, the first time resulting in a 9-0 decision that an individual does have standing to
raise the Tenth Amendment to the Constitution as a defense. Bond v. United States, 131
S. Ct. 2355 (2011).
6 Act of March 3, 1881 To Authorize the Registration of Trade-Marks and Protect the
Same, 21 Stat. 502 (1881) (the 1881 Trademark Act); John T. Cross, The LingeringLegacy
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