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VI. Conclusion

Sovereignty should be the touchstone of any debate over the limits on the treaty power. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people. To hold otherwise would be to undermine the constitutional structure created at the nation’s founding. This principle was most clearly enshrined in the Tenth Amendment. But even before the Bill of Rights was created, the Constitution painstakingly enumerated the limited powers of the federal government on the basis that states would retain authority in a system of dual sovereignty. Because “we must never forget that it is a constitution we are expounding,” the Court must remember the Constitution’s “great outlines” and “important objects.”181 The Framers’ genius in dividing sovereign authority between the federal and state governments certainly qualifies as one of the great outlines and important objects that Chief Justice Marshall deemed necessary for interpreting the Constitution. Dual sovereignty therefore properly constrains the federal government’s treaty power.