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42 Minn. L. Rev. 825 (1957-1958)
The Treaty Making Power and the Extraterritorial Effect of the Constitution: Reid v. Covert and the Girard Case

handle is hein.journals/mnlr42 and id is 837 raw text is: THE TREATY MAKING POWER AND THE
Two major cases concerning the relaticnship of treaties to the
United States Constitution were decided by the Supreme Court in
1957: Reid v. Covert' and Wilson v. Girard.' While these cases
appear to answer some long debated questions in the field of treaty
law, they create a host of new problems which still await resolution.
In the preparation of this article it had been hoped that consideration
of these two cases in the light of the precedents would permit some
useful generalizations concerning the law in this field. However, it
must be concluded that the law as to the relationship of treaties to
the Constitution is still too much in the formative stages to allow
any really definitive treatment. Thus, this article will do no more
than attempt to analyze the relevant cases and make some sugges-
tions as to the trend which future decisions ought to take.
Unquestionably, the more important of the two cases was Reid v.
Covert. This case appears to have established the principle that
treaties are subject to constitutional limitations, even though there
was no opinion in which a majority of the Court concurred. The
point was squarely made only in the opinion of Justice Black, which
was concurred in by three other Justices.3 Although neither the two
concurring Justices nor the two dissenters4 discuss this issue, they
do not take exception to such a conclusion, and the proposition
seems inherent in the concurring opinions of Justice Frankfurter5
and Justice Harlan.6
The question as to the relationship of treaties and the Constitu-
tion perhaps arose from the peculiar wording of Article VI, under
which the laws of the United States are required to be made in pur-
suance of the Constitution in order to be the supreme law of the
land, whereas treaties are not explicitly so limited.7 Concern over
*Member of the New York and District of Columbia Bars.
1. Decided together with Kinsella v. Krueger, 354 U.S. 1 (1957).
2. 354 U.S. 524 (1957).
3. The Chief Justice, Justice Douglas and Justice Brennan.
4. Justice Frankfurter and Justice Harlan concurred; Justice Clark and
Justice Burton dissented; and Justice Whittaker (lid not participate.
5. 354 U.S. at 41.
6. Id. at 65.
7. See Missouri v. Holland, 252 U.S. 416, 433 (1920).

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