Treaties and the Constitution

When is it proper to invoke a treaty? Landmark case: although it doesn’t give the
term "self-executing" it describes it.

Case: Foster & Elam v. Neilson (1829; US)

Facts: The suit is about possession of land in Louisiana. P claimed that the land
was granted by the Spanish Governor. D asserts that there is no title on which P
can recover b/c the territory on which the land is on had been ceded to France,
then from France to the U.S. before the land was granted by the Spanish Governor,
and so there was no authority by the Spanish governor to grant the land.
○ U.S. insisted that by Treaty of St. Ildefonso, on 10/01/1800, Spain ceded
the disputed territory to France, and then France, by the Treaty of Paris, on
04/30/1803, ceded it to the U.S.
○ Spain insists that the cession to France did not include that specific
territory.

Issue: How does US court decide who the land belonged to at the time?

Holding: It's ok to look at treaties; like legislation.

Reasoning: Justice Marshall here establishes that the constitution declares a

treaty to be the law of the land, so therefore, it would be equivalent to
legislation; without the aid of a legislative provision.
○ Article VI(2) of US Constitution: talks about the Supremacy Clause, "[…]
and all treaties made […] shall be the supreme law of the land."
○ The treaty between France and Spain they looked at was unclear.

RULE: [now called self-executing treaties] - a treaty operates of itself without

the aid of any legislation, state or national; and it will be applied and given
authoritative effect by the courts.

Notes
• What does P want us to believe about this treaty?
○ In the treaty btwn US and Spain, there was a provision that Spain will
give land to US, and territory ceded by Spain shall be ratified and confirmed to
persons in possession of the land. So P can claim the land then.
○ Question is; Whether or not when we sign the treaty, that the grant of
land is assigned to P, or if more has to be done?
○ Part I: this is not a self-executing treaty, so P cant rely on the treaty
until its ratified and implemented by Congress
§ Dualist system of law
□ On one hand, the international realm of law - where US has made
an agreement with Spain
® Here, may be brought in international court if treaty
provisions say this, and state consented
□ On the other hand, in the domestic realm - domestically, the
treaty doesn’t become law until it is ratified and implemented domestically.
○ Why is this treaty not self-executing?
§ Go to the text of the treaty - specifically mentions of the
ratification process

• How do we differentiate btwn self-executing and non-self-executing treaties?

 ○ Intent
○ was the treaty hortatory in nature? Was it just setting goals for states
to implement?
○ Whether or not the treaty requires affirmative implementation.
§ if so, can’t rely on treaty, you have to wait for laws to be
implemented by the gov't