Assuming, then, that the reasoning which has gone before is correct, it may be asked: Are we led to the conclusion that, in extent, the treaty-making power is without constitutional limits, and may it be predicted that in no conceived case will the Supreme Court hold void of legal force a treaty duly entered into by the treaty-making power? This question may be answered in the negative. As pointed out at the beginning of this chapter, there undoubtedly are limits to the extent of the treaty-making power which the Supreme Court may be expected to recognize and apply. It is true that all-of the dicta that were quoted are obiter in that in no instance were they applied to hold a treaty provision void; yet, when we find the statement so positively asserted, and so many times repeated, we may, I think, take it as established.

17 A more detailed statement of this argument is given in Chapter LXIV (Conclusiveness Of Administrative Determinations. 754. Due Process Of Law Does Not Deman'D Determination Of Rights In Courts Of Law) of this work, in the section entitled "The Conclusiveness of Administrative Determinations."

If, however, as we have seen, individual rights and the reserved powers of the States may, upon occasion, be sacrificed to the treaty-making power, under what circumstances, and according to what principle, may we expect these limitations to be imposed? Briefly stated, the answer is that these limitations are to be found in the very nature of treaties. That is, that the treaty-making power may not be used to secure a regulation or control of a matter not properly and fairly a matter of international concern. It cannot be employed with reference to a matter not legitimately a subject for international agreement, any more than can the States under the claim of an exercise of their police powers regulate a matter not fairly comprehended within the field of police regulation. Thus, while it might be appropriate for the United States, by treaty with England, to provide that English citizens living in the United States should have certain rights of property, or schooling privileges, etc., within the States, state law to the contrary notwithstanding, it would not be appropriate, and, therefore, would not be constitutional, for the United States by such a treaty to provide that all aliens, whether British subjects or not, should enjoy these rights within the States in which they might live. So likewise, it would not be a proper or constitutional exercise of the treaty-making power to provide that Congress should have a general legislative authority over a subject which has not been given it by the Constitution; or that a power now exercised by one of the departments of the General Government should be exercised by another department. For there are matters of domestic national law with which foreign power has no concern. In short, the treaty-making power is to be exercised with constitutional bona fides.

The principle which has been stated, that, to be constitutionally valid, a treaty must have reference to a subject properly a matter fur international agreement, excludes from the federal treaty-making power the authority to disregard those prohibitions of the Constitution, express and implied, which are directed not to Congress but to the National Government as a whole.

It is scarcely to be conceived that the treaty-making power will ever make the attempt, but should it seek to override these pro-hil.itions, or to alter the distribution of powers provided for in the Constitution, or in any way to "change the general character of the governmental polity by that instrument created, it may be expected that the judiciary will interpose its veto. The treaty-making power in all its fulness is granted that the National Government may be preserved, that it may be efficient for the purposes for which it is created, not that it may be destroyed or changed in essential character.

It is a principle of international law that treaties between nations should be executed with uberrima fides. Undoubtedly, however, our courts, in construing a treaty which infringes upon the ordinary reserved rights of the States, will, when possible, so interpret it as to minimize so far as possible the extent of this infringement. And, undoubtedly, the treaty-making power itself will, when possible, refrain from entering upon treaties which will trench upon the States' reserved .powers, and will, in the future, take extreme .pains so to word international agreements as to render impossible an interpretation by the other signatory parties which will give to them this effect. This caution the recent Japanese school question in California will suggest. But in any case, the Supreme Court will be exceedingly loth to deny legal validity to a treaty provision. For it does not need to be observed that, though by holding a treaty provision unconstitutional that prevision is denied legal validity in this country, the United States is not thereby released from its obligation under it to the other signatory powers, and the result is, necessarily, a breach of our covenant with those powers. The same, of course, would be true should Congress refuse to pass the legislation necessary for putting a treaty into full force and effect, unless, indeed, as is sometimes done, it were provided in the treaty itself that it was not to go into effect unless, and until, the necessary legislative assistance was obtained. 18