5 2013]
BOND V. UNITED STATES
treatise17 have left the erroneous impression, for almost a century, that a treaty can, in fact, increase the legislative power of Congress. In our view, that conclusion is in deep tension with the basic constitutional axiom of limited federal power. At first glance, this issue might seem an odd fit for this Journal. This case is about a deep principle of constitutional structure, and thus, one might think, only tangentially related to individual liberty. But nothing could be further from the truth. Matters of constitutional structure are inextricably bound up with matters of individual liberty. The deep structural themes of the Constitution—federalism and separation of powers—are ultimately the Constitution’s most powerful safeguards of liberty. Indeed, the Court saw this point clearly, in the prior iteration of this very case, in a passage that could be an apt epigraph for this new journal. The Court wrote: Federalism secures the freedom of the individual. . . . By denying any one government complete jurisdiction over all 17
See LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 481 n.111 (2nd ed. 1996) (“The ‘necessary and proper’ clause originally contained expressly the power ‘to enforce treaties’ but it was stricken as superfluous.”); LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 408 n.105 (1st ed. 1972) (same). But see Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867, 1875, 1912–18 (2005) (“The words ‘enforce treaties’ never appeared in the Necessary and Proper Clause.”).