Law Commons^™

Treaties And International Regulation, Lori Fisler Damrosch

Faculty Scholarship

The authority of Missouri v. Holland is in no way impaired by developments of the last decade. While Justice Holmes rejected the view that "invisible radiation" from the Tenth Amendment could restrict the treaty power, his approach accepts that a treaty cannot violate "prohibitory words" in the Constitution. Some prohibitory words explicitly protect the interests of the states as against the national government. For example, the framers clearly meant the prohibition in Article I, section 9 on export taxes to bar one form of potential federal taxation that the Southern states found worrisome. In the face of this specific prohibition, …