Zschernig v. Miller/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

Although I agree with the result reached in this case, I am unable to subscribe to the Court's opinion, for three reasons. First, by resting its decision on the constitutional ground that this Oregon inheritance statute infringes the federal foreign relations power, without pausing to consider whether the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany itself vitiates this application of the state statute, the Court has deliberately turned its back on a cardinal principle of judicial review. Second, correctly construed the 1923 treaty, in my opinion, renders Oregon's application of its statute in this instance impermissible, thus requiring reversal of the state judgment. Third, the Court's constitutional holding, which I reach only because the majority has done so, is in my view untenable. The impact of today's holding on state power in this field, and perhaps in other areas of the law as well, justifies a full statement of my views upon the case.

Even in this age of rapid constitutional change, the Court has continued to proclaim adherence to the principle that decision of constitutional issues should be avoided wherever possible. In his celebrated concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct.466, 480, 80 L.Ed. 688, Mr. Justice Brandeis listed the self-imposed rules by which the Court has avoided the unnecessary decision of constitutional questions. In his fourth rule he dealt with the situation presented by this case, declaring that:

'The Court will not pass upon a constitutional question     although properly presented by the record, if there is also      present some other ground upon which the case may be disposed      of. * *  * Thus, if a case can be decided on either of two      grounds, one involving a constitutional question, the other a      question of statutory construction or general law, the Court      will decide only the latter. Siler v. Louisville & Nashville     R. Co., 213 U.S. 175, 191, (29 S.Ct. 451, 53 L.Ed. 753);      Light v. United States, 220 U.S. 523, 538 (31 S.Ct. 485, 55      L.Ed. 570.)' Id., at 347, 56 S.Ct., at 483.

The above rule should control the disposition of this case, for there is what I think must be regarded, within the meaning of Ashwander, as a nonconstitutional ground on which the decision could be founded. Although the appellants chose to argue only the constitutional question, the United States, as amicus curiae, forcefully, and I believe correctly, contended that the full relief sought by the appellants should be afforded by overruling the construction of the 1923 treaty, rather than the constitutional holding, in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. The Court simply states that '(w)e do not accept the invitation to re-examine our ruling in Clark v. Allen.' See ante, at 432. I believe that the principle of avoiding unnecessary constitutional adjudication obliges us to accept that invitation and to inquire whether the treaty might provide an adequate alternative ground for affording the appellants their due.

Article IV of the 1923 treaty with Germany provides:

'Where, on the death of any person holding real or other     immovable property or interests therein within the      territories of one High Contracting Party, such property or      interest therein would, by the laws of the country or by a      testamentary disposition, descend or pass to a national of      the other High Contracting Party, whether resident or      non-resident, were he not disqualified by the laws of the      country where such property or interests therein is or are      situated, such national shall be allowed a term of three      years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary,      and withdraw the proceeds thereof, without restraint or      interference, and exempt from any succession, probate or      administrative duties or charges other than those which may      be imposed in like cases upon the nationals of the country      from which such proceeds may be drawn.

'Nationals of either High Contracting Party may have full     power to dispose of their personal property of every kind      within the territories of the other, by testament, donation,      or otherwise, and their heirs, legatees and donees, of      whatsoever nationality, whether resident or non-resident,      shall succeed to such personal property, and may take      possession thereof, either by themselves or by others acting      for them, and retain or dispose of the same at their pleasure      subject to the payment of such duties or charges only as the      nationals of the High Contracting Party within whose      territories such property may be or belong shall be liable to      pay in like cases.'

In Clark v. Allen, supra, this Court considered the application of this treaty provision to a case much like the present one. In Clark, one who was apparently an American citizen died in California and left her real and personal property to German nationals. The California Probate Code provided that

'The rights of aliens not residing within the United States *     *  * to take either real or personal property or the proceeds      thereof in this State by succession or testamentary      disposition, upon the same terms and conditions as residents      and citizens of the United States is dependent in each case      upon the existence of a reciprocal right upon the part of      citizens of the United States to take real and personal      property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective      countries of which such aliens are inhabitants and citizens      and upon the rights of citizens of the United States to      receive by payment to them within the United States or its      territories money originating from the estates of persons      dying within such foreign countries.' Cal.Prob.Code § 259,      added by Stats. 1941, c. 895, § 1.

The Clark Court first considered whether the 1923 treaty with Germany had survived the events of the years 1923-1947. It concluded that the treaty was still in effect and that it clearly entitled the German citizens to take the real estate left them by the decedent.

The Court then went on to discuss the application of the treaty to personalty. It noted that a practically identical provision of a treaty with Wurttemburg had been held in the 1860 case of Frederickson v. State of Louisiana, 23 How. 445, 16 L.Ed. 577, not to govern '(t)he case of a citizen or subject of the respective countries residing at home, and disposing of (personal) property there in favor of a citizen or subject of the other * *  * ,' id., at 447, and that the Frederickson decision had been followed in 1917 cases involving three other treaties. The Court then said: the territory of the 'other' contracting party; and it is     'such personal property' that the 'heirs, legatees and      donees' are entitled to take.

'Petitioner, however, presents a detailed account of the     history of the clause which was not before the Court in      Frederickson v. State of Louisiana, supra, and which bears      out the construction that it grants the foreign heir the      right to succeed to his inheritance or the proceeds thereof. But we do not stop to review that history. For the consistent     judicial construction of the language since 1860 has given it      a character which the treaty-making agencies have not seen      fit to alter. And that construction is entirely consistent     with the plain language of the treaty. We therefore do not     deem it appropriate to change that construction at this late      date, even though as an original matter the other view might      have much to commend it.' 331 U.S., at 515-516, 67 S.Ct., at      1438.

In the case now before us, an American citizen died in Oregon, leaving property to relatives in East Germany. An Oregon statute conditioned a nonresident alien's right to inherit property in Oregon upon the existence of a reciprocal right of American citizens to inherit in the alien's country upon the same terms as citizens of that country; upon the right of American citizens to receive payment within the United States from the estates of decedents dying in that country; and upon proof that the alien heirs of the American decedent would receive the benefit, use, and control of their inheritance without confiscation. The Oregon Supreme Court affirmed the finding of the trial court that the evidence did not establish that American citizens were accorded reciprocal rights to take property from or to receive the proceeds of East German estates. However, it found that the 1923 treaty was still effective with respect to East Germany, and consequently held that under Clark v. Allen the East German heirs must be permitted to take the real, though not the personal, property despite the Oregon statute.

I, too, believe that the 1923 treaty is still applicable to East Germany. However, I am satisfied that Clark v. Allen should not be followed insofar as the Court there held that the words of the 1923 treaty must be taken to bear the meaning ascribed to them in Frederickson v. State of Louisiana because of the 'consistent judicial construction of the language since 1860.' This reasoning assumes both that the drafters of the 1923 treaty knew of the Frederickson decision and that they thought Frederickson would control the interpretation of that treaty. The first assumption seems open to substantial doubt, and the second is not beyond question.

There is evidence that in 1899, almost 40 years after the Frederickson decision, the State Department's treaty draftsmen were not aware of the meaning given to the crucial treaty language in that opinion. For in 1895 the British Ambassador initiated correspondence with the State Department in which he proposed a treaty which would assure that 'no greater charges (would) be imposed * *  * on real or personal property in the United States inherited by British subjects, whether demiciled within the union or not, then are imposed upon property inherited by American citizens,' in return for provisions assuring to American citizens reciprocal rights in Great Britain. The ensuing treaty of 1899 contained language substantially identical to that in the subsequent 1923 treaty with Germany. Since it is highly unlikely that the British Ambassador intended that British subjects should be able to inherit personal property from American decedents only if those decedents happened also to be British subjects, or that the State Department so understood him, it is clear enough that the draftsmen in 1899 must have been unaware of Frederickson.

It is also conceivable that the drafters of the 1923 treaty thought that Frederickson was inapplicable to that treaty. Because the article of the Wurttemburg treaty dealing with realty was not brought to the attention of the Frederickson Court, the Frederickson decision was based largely upon he Court's understanding that

'The case of a citizen or subject of the respective countries     residing at home, and disposing of property there in favor of      a citizen or subject of the other, was not in the      contemplation of the contracting Powers, and is not embraced      in this article of the treaty.' 23 How., at 447-448.

Hence, the drafters of the 1923 treaty might have assumed that Frederickson was not applicable to that treaty, in which the inclusion of the realty provision made it clear that the parties did consider the case of a citizen dying in his own country. In view of these indications that the draftsmen of the 1923 treaty very likely did not intend that the words of the treaty should bear the meaning given them in Frederickson, it seems to me that the Court in Clark v. Allen erred in holding the question foreclosed. Accordingly, a de novo inquiry into the meaning of the treaty seems entirely appropriate.

The language of Article IV of the 1923 treaty with Germany, which was quoted earlier, is based upon Article X of the treaty of 1785 with Prussia. Article X provided:

'The citizens or subjects of each party shall have power to     dispose of their personal goods within the jurisdiction of      the other, by testament, donation or otherwise; and their      representatives, being subjects or citizens of the other      party, shall succeed to their said personal goods *  *  * and      dispose of the same at their will, paying such dues only as      the inhabitants of the country wherein the said goods are,      shall be subject to pay in like cases. * *  * And where, on      the death of any person holding real estate within the      territories of the one party, such real estate would by the      laws of the land descend on a citizen or subject of the      other, were he not disqualified by alienage, such subject      shall be allowed a reasonable time to sell the same, and to      withdraw the proceeds without molestation, and exempt from      all rights of detraction on the part of the government of the      respective states.'

This part of the treaty with Prussia was in turn founded upon earlier treaties with France, the Netherlands, and Sweden. The treaty of 1778 with France specifically freed American citizens from the burdens of two restrictions of the right of aliens to dispose of or inherit property which were then common in the civil law countries: the droit d'aubaine and the droit de de traction. The droit d'aubaine was the feudal right of the sovereign to appropriate the property of an alien who died within the realm; an aspect of this doctrine was 'the complementary incapacity of an alien to inherit, even from a citizen.' Nielsen v. Johnson, 279 U.S. 47, 55, 49 S.Ct. 223, 225, 73 L.Ed. 607 n. 2. The droit d'aubaine was replaced during the 18th century by the droit de de traction, a tax 'imposed on the right of an alien to (inherit) *  *  * the property of persons dying within the realm,' Nielsen v. Johnson, supra, at 56, 49 S.Ct., at 225 n. 2, and levied upon the removal of the inherited property by the alien from the decedent's country.

The 1782 treaty with the Netherlands and the 1783 treaty with Sweden were framed more generally. They provided that:

'The subjects of the contracting parties in the respective     states, may freely dispose of their goods and effects either      by testament, donation or otherwise, in favour of such      persons as they think proper; and their heirs in whatever      place they shall reside, shall receive the succession *  *      * .'

The 1785 treaty with Prussia, which is substantially identical to the 1923 treaty, differed from the earlier treaties in two important respects. For one thing, it dealt separately with realty and with personalty. This separate treatment stemmed from the fact that at common law aliens could freely inherit personalty but could not succeed to realty. The Continental Congress, apparently fearing that under the Articles of Confederation it lacked power thus to alter the laws of the States, instructed the Commissioners who negotiated the treaty '(t)hat no rights be stipulated for aliens to hold real property within these States, this being utterly inadmissible by their several laws and policy,' but that a person who would inherit personalty but for his alienage should be permitted to sell the property and withdraw the proceeds within a reasonable time.

The other important difference was that the provision of the Prussian treaty dealing with the disposal and inheritance of personalty, though generally based upon the corresponding language in the Dutch and Swedish treaties, was altered by the addition of the phrase 'within the jurisdiction of the other,' so as to read:

'The citizens or subjects of each party shall have power to     dispose of their personal goods within the jurisdiction of      the other, by testament, donation or otherwise; and their      representatives, being subjects or citizens of the other      party, shall succeed to their said personal goods *  *  * and      dispose of the same at their will, paying such dues only as      the inhabitants of the country wherein the said goods are,      shall be subject to pay in like cases. * *  * ' (Emphasis      added.) There is no precise indication why this phrase was added. Its function seems to have been to define more clearly than the earlier treaties the cases in which disposition of property required protection from the droit d'aubaine, namely those instances when property was disposed of in a country other than that of the citizenship of the owner. Under this construction, the phrase would modify the word 'dispose' rather than the words 'personal goods' (or 'personal proerty' in the 1923 treaty). The right of succession would be unaffected, since the words 'said personal goods' (or 'such personal property' in the 1923 treaty) would refer to all 'personal goods' (or to 'personal property of every kind' in the 1923 treaty) and not merely to those personal goods within the territory of the other party to the treaty.

Several factors point to the conclusion that this construction is correct, and that the phrase 'within the jurisdiction of the other' was not intended to modify the words 'personal goods' and thereby to limit the right of succession. The addition of the phrase 'within the jurisdiction of the other' was unrelated to the problem of freeing rights of succession from the droit de de traction, since that exaction was imposed upon succession by an alien to the property of any person dying within the realm, regardless of the citizzenship of the decedent. The phrase therefore cannot have been intended to modify the right of succession in order to enlarge or contract this freedom.

Moreover, the terms of the newly added real property clause affirmatively indicate that the 'personal goods' clause of the 1785 treaty (and therefore the 'personal property' clause of the 1923 treaty) was intended to confer the right to inherit personal property from both alien and citizen decedents. The first draft of the 1785 treaty was substantially similar to the earlier Dutch and Swedish treaties, and quite clearly would have permitted aliens to succeed to real or personal proerty regardless of whether the decedent died in his own country. However, as noted earlier, the Continental Congress out of caution instructed the Commissioners that aliens should not be allowed by the treaty to succeed to and hold real estate but should be limited to sale of the land and removal of the proceeds. This indicates that the real estate clause was intended purely as a limitation on the rights accorded with respect to personal property and was not supposed to confer any greater rights. The real property clause certainly permitted inheritance from both alien and citizen, for it allowed succession 'on the death of any person holding real estate.' This was acknowledged by the Court in Clark v. Allen, supra, 331 U.S. at 517, 67 S.Ct. at 1439, with respect to the 1923 treaty. It would seem to follow that the more liberal personal property clause was also intended to allow inheritance regardless of the decedent's nationality.

The conclusion that the personal property clause of the 1785 (and hence of the 1923) treaty was intended to grant a right of inheritance no matter what the decedent's citizenship finds additional support in the State Department's interpretations of similar treaty provisions during the 19th century. When negotiating substantially identical provisions in treaties with German states in the 1840's, the then Minister to Prussia, Mr. Wheaton, indicated his belief that the proposed treaties would protect 'naturalized Germans, resident in the U(nited) States, who are entitled to inherit the property of their relations deceased in Germany.' There was no suggestion that the treaties would apply only to real property or, with respect to personal property, only to the small class of naturalized Germans whose 'relations' in Germany happened also to be American citizens. In responding to Mr. Wheaton, the State Department instructed him to take as his 'general guide' the treaty with Prussia and others similarly worded, and instructed him that the object should be 'the removal of all obstructions * *  * to the withdrawal from the one country, by the citizens or subjects of the other, of any property which may have been transferred to them by *  *  * will,-or which they may have inherited ab intestato.'

Later in the century, after the Frederickson decision, the State Department several times indicated that it regarded similarly worded treaties as assuring citizens of one country the right to inherit personal property of citizens of the other dying in their own country. In 1868 and 1880 the Department asserted, under a similarly worded treaty, the right of American citizens to inherit personal property of Swiss decedents who died in Switzerland. In 1877, it took the same position with respect to the rights of Russian heirs to inherit the personal property of American decedents under a like treaty with Russia. The negotiations leading to the British treaty of 1899, which have previously been described, reveal the same attitude.

This course of history, coupled with the general principle that 'where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging rights which may be claimed under it, the more liberal interpretation is to be preferred,' leads in my opinion to the conclusion that Article IV of the 1923 treaty should be construed as guaranteeing to citizens of the contracting parties the rights to inherit personal property from a decedent who dies in his own country. I would overrule Frederickson v. State of Louisiana, supra, and Clark v. Allen, supra, insofar as they hold the contrary. Considerations of stare decisis should not stand in the way of rectifying two decisions that rest on such infirm foundations. Compare Swift & Co., Inc. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194, with Kesler v. Department of Public Safety, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. Properly construed, the 1923 treaty, which of course takes precedence over the Oregon statute under the Supremacy Clause, entitles the appellants in this case to succeed to the personal as well as the real property of the decedent despite the state statute.

Upon my view of this case, it would be unnecessary to reach the issue whether Oregon's statute governing inheritance by aliens amounts to an unconstitutional infringement upon the foreign relations power of the Federal Government. However, since this is the basis upon which the Court has chosen to rest its decision, I feel that I should indicate briefly why I believe the decision to be wrong on that score, too.

As noted earlier, the Oregon statute conditions an alien's right to inherit Oregon property upon the satisfaction of three conditions: (1) a reciprocal right of Americans to inherit property in the alien's country; (2) the right of Americans to receive payment in the alien's country; and (3) proof that the alien heirs of the Oregon decedent would receive the benefit, use, and control of their inheritance without confiscation. In Clark v. Allen, supra, the Court upheld the constitutionality of a California statute which similarly conditioned the right of aliens to inherit upon reciprocity but did not contain the other two restrictions. The Court in Clark dismissed as 'farfetched' the contention that the statute unconstitutionally infringed upon the federal foreign relations power. See 331 U.S., at 517, 67 S.Ct., at 1439. The Court noted that California had not violated any express command of the Constitution by entering into a treaty, agreement, or compact with foreign countries. It said that '(w) hat California has done will have some incidental or indirect effect in foreign countries. But that is true of many state laws which none would claim cross the forbidden line.' Ibid.

It seems to me impossible to distinguish the present case from Clark v. Allen in this respect in any convincing way. To say that the additional conditions imposed by the Oregon statute amount to such distinctions would be to suggest that while a State may legitimately place inheritance by aliens on a reciprocity basis, it may not take measures to assure that reciprocity exists in practice and that the inheritance will actually be enjoyed by the person whom the testator intended to benefit. The years since the Clark decision have revealed some instances in which state court judges have delivered intemperate or ill-advised remarks about foreign governments in the course of applying such statutes, but nothing has occurred which could not readily have been foreseen at the time Clark v. Allen was decided.

Nor do I believe that this aspect of the Clark v. Allen decision should be overruled, as my Brother STEWART would have it. Prior decisions have established that in the absence of a conflicting federal policy or violation of the express mandates of the Constitution the States may legislate in areas of their traditional competence even though their statutes may have an incidental effect on foreign relations. Application of this rule to the case before us compels the conclusion that the Oregon statute is constitutional. Oregon has so legislated in the course of regulating the descent and distribution of estates of Oregon decedents, a matter traditionally within the power of a State. See ante, at 440. Apart from the 1923 treaty, which the Court finds it unnecessary to consider, there is no specific interest of the Federal Government which might be interfered with by this statute. The appellants concede that Oregon might deny inheritance rights to all nonresident aliens. Assuming that this is so, the statutory exception permitting inheritance by aliens whose countries permit Americans to inherit would seem to be a measure wisely designed to avoid any offense to foreign governments and thus any conflict with general federal interests: a foreign government can hardly object to the denial of rights which it does not itself accord to the citizens of other countries.

The foregoing would seem to establish that the Oregon statute is not unconstitutional on its face. And in fact the Court seems to have found the statute unconstitutional only as applied. Its notion appears to be that application of the parts of the statute which require that reciprocity actually exist and that the alien heir actually be able to enjoy his inheritance will inevitably involve the state courts in evaluations of foreign laws and governmental policies, and that this is likely to result in offense to foreign governments. There are several defects in this rationale. The most glaring is that it is based almost entirely on speculation. My Brother DOUGLAS does cite a few unfortunate remarks made by state court judges in applying statutes resembling the one before us. However, the Court does not mention, nor does the record reveal, any instance in which such an occurrence has been the occasion for a diplomatic protest, or, indeed, has had any foreign relations consequence whatsoever. The United States says in its brief as amicus curiae that it

'does not * *  * contend that the application of the Oregon      escheat statute in the circumstances of this case unduly      interferes with the United States' conduct of foreign      relations.'

At an earlier stage in this case, the Solicitor General told this Court:

'The Department of State has advised us * *  * that State      reciprocity laws, including that of Oregon, have had little      effect on the foreign relations and policy of this country. *     *  * Appellants' apprehension of a deterioration in      international relations, unsubstantiated by experience, does      not constitute the kind of 'changed conditions' which might      call for re-examination of Clark v. Allen.'

Essentially, the Court's basis for decision appears to be that alien inheritance laws afford state court judges an opportunity to criticize in dictum the policies of foreign governments, and that these dicta may adversely affect our foreign relations. In addition to finding no evidence of adverse effect in the record, I believe this rationale to be untenable because logically it would apply to many other types of litigation which come before the state courts. It is true that, in addition to the many state court judges who have applied alien inheritance statutes with proper judicial decorum, some judges have seized the opportunity to make derogatory remarks about foreign governments. However, judges have been known to utter dicta critical of foreign governmental policies even in purely domestic cases, so that the mere possibility of offensive utterances can hardly be the test.

If the flaw in the statute is said to be that it requires state courts to inquire into the administration of foreign law, I would suggest that that characteristic is shared by other legal rules which I cannot believe the Court wishes to invalidate. For example, the Uniform Foreign Money-Judgments Recognition Act provides that a foreign-country money judgment shall not be recognized if it 'was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.' When there is a dispute as to the content of foreign law, the court is required under the common law to treat the question as one of fact and to consider any evidence presented as to the actual administration of the foreign legal system. And in the field of choice of law there is a nonstatutory rule that the tort law of a foreign country will not be applied if that country is shown to be 'uncivilized.' Surely, all of these rules possess the same 'defect' as the statute now before us. Yet I assume that the Court would not find them unconstitutional.

I therefore concur in the judgment of the Court upon the sole ground that the application of the Oregon statute in this case conflicts with the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany.

Mr. Justice WHITE, dissenting.