The Internationalism of American Federalism: Missouri and Holland

This lecture provides examples of the role of the "foreign" in the "local." A first comes from California's Law on "toxic toys." California has adopted part of Europe's law as its own. This example is not only recent but also in an area, consumer product safety, that is not commonly found in the legal literature on federalism and transnational activities. California's innovations are part of a pattern woven over centuries and thickening during the twentieth century, as can be seen by turning from toxic toys to human rights. In my discussion, I examine how the decision in Missouri v. Holland acknowledged forms of concurrency while it also rejected the divesture of national power through "the invisible radiation from the general terms of the Tenth Amendment." Missouri v. Holland is famous (and contested) today for the proposition that the Senate can use its treaty power to do what is otherwise beyond its power, but within a few decades after the opinion was issued, Congress no longer needed treaty power as a predicate to regulate birds; Congress's powers under the Commerce Clause had been reconceived to be capacious. Missouri v. Holland also provides insights into the plasticity of the categories of the "truly local" and the "truly national." The attitude that birds and water and other natural resources were regulated at the state, rather than at the national, level persisted through many decades of the twentieth century. Illustrative is the 1071 decision of Ohio v. Wyandotte Chemicals Corporation, in which Ohio sought to invoke the original jurisdiction of the United States Supreme Court in an effort to protect its citizens from the harms of mercury, allegedly produced by the defendant chemical plants that were polluting Lake Erie's "waters, vegetation, fish, and wild-life". Yet, soon thereafter, those assumptions flipped. Within a period of some thirty years, what had been understood to be quintessentially a "state" and "local" issue became taken-for-granted as obviously a matter for federal governance. That shift came from a mix of legal and political changes, as federal dollars supported environmental protection efforts and national regulation came to impose standards and procedural regulation. When Missouri v. Holland is put with the case it cited at its end - Carey v. South Dakota - what emerges is a presumption of concurrency, of a recognition of national power not divested by states, but also of state power not divested by national government. Our central case is after all, oddly enough named Missouri v. Holland. The Holland there was, Ray P. Holland, the U.S. game warden. My argument is that we should conceive of the world as Missouri and Holland, here referring not to a person but rather to a nation now called the Netherlands, and to the dozens of other countries with which Missouri has allied in subnational relationships through Sister Cities and many other methods. The U.S. federal system is rich with mechanisms for both importation and exportation, and our joint challenge is to understand - as sovereigntists remind us - which norms we want to claim and proudly embrace as definitionally part of "our" law.