The Internationalism of American Federalism: Missouri and Holland

This lecture provides examples of role of foreign in local. A first comes from California's Law on 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 legal literature on federalism and transnational activities. California's innovations are part of a pattern woven over centuries and thickening during twentieth century, as can be seen by turning from toxic toys to human rights. In my discussion, I examine how decision in Missouri v. Holland acknowledged forms of concurrency while it also rejected divesture of national power through the invisible radiation from general terms of Tenth Amendment. Missouri v. Holland is famous (and contested) today for proposition that Senate can use its treaty power to do what is otherwise beyond its power, but within a few decades after opinion was issued, Congress no longer needed treaty power as a predicate to regulate birds; Congress's powers under Commerce Clause had been reconceived to be capacious. Missouri v. Holland also provides insights into plasticity of categories of truly and truly national. The attitude that birds and water and other natural resources were regulated at state, rather than at national, level persisted through many decades of twentieth century. Illustrative is 1071 decision of Ohio v. Wyandotte Chemicals Corporation, in which Ohio sought to invoke original jurisdiction of United States Supreme Court in an effort to protect its citizens from harms of mercury, allegedly produced by 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 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 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, U.S. game warden. My argument is that we should conceive of world as Missouri and Holland, here referring not to a person but rather to a nation now called Netherlands, and to 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 joint challenge is to understand - as sovereigntists remind us - which norms we want to claim and proudly embrace as definitionally part of our law.