Judicial Power and Treaties

                The topic of discussion for this Constitution Monday comes from Article III, Section 2, Clause 1:  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.  This means that federal judges have the authority to hear questions concerning the applications of treaties or agreements.

                James Madison explained why he thought the federal courts should be the tribunal to hear questions involving treaties and agreements with foreign nations:  “With respect to treaties, there is a peculiar propriety in the judiciary’s expounded them.

                “These may involve us in controversies with foreign nations.  It is necessary, therefore, that they should be determined in the courts of the general government.  There are strong reasons why there should be a Supreme Court to decide such disputes.  If, in any case, uniformity be necessary, it must be in the exposition of treaties.  The establishment of one revisionary superintending power can alone secure such uniformity….  As our intercourse with foreign nations will be affected by decisions of this kind, they ought to be uniform.  This can only be done by giving the federal judiciary exclusive jurisdiction.  Controversies affecting the interest of the United States ought to be determined by their own judiciary, and not be left to partial, local tribunals.”  (See W. Cleon Skousen, The Making of America – The Substance and Meaning of the Constitution, p. 598.)