Zschernig v. Miller
The Supreme Court struck down Oregon's inheritance law as applied to heirs living in East Germany, ruling that the law forced state courts to judge the fairness and legitimacy of foreign governments in a way that intruded on the federal government's exclusive control over foreign affairs.
The decision established that a state law can be unconstitutional simply because its real-world operation interferes with the nation's conduct of foreign relations, even without any treaty or federal statute directly on point.
“The Oregon law does, indeed, illustrate the dangers which are involved if each State, speaking through its probate courts, is permitted to establish its own foreign policy.”
The majority's core warning about states setting their own foreign policy through probate law.
How it got here: The Oregon Supreme Court ruled the East German heirs could inherit the real property but not the personal property; they appealed that ruling to the U.S. Supreme Court.
The Case in Depth
What happened
An Oregon resident died in 1962 without a will, leaving his estate to relatives living in East Germany. Oregon's escheat law let the state claim a deceased person's property from foreign heirs unless they proved their home country gave Americans reciprocal inheritance rights, let them receive money from estates, and would let them keep the inheritance without government confiscation.
The question before the Court
Could Oregon deny East German relatives their inheritance from an Oregon estate under a law that required state courts to judge whether their government treated Americans fairly?
The Court's answer
No — the Court ruled that Oregon could not deny the East German heirs their inheritance under a law that required state courts to investigate and judge the legitimacy of East Germany's government and legal system. A state law with only an incidental effect on foreign relations is fine, but Oregon's statute pushed probate courts into evaluating foreign officials' credibility, the fairness of foreign courts, and whether a foreign government was legitimate — judgments that belong exclusively to the federal government.
Because Oregon's escheat law, as actually applied over many cases, had become a vehicle for state judges to render their own foreign-policy views about Communist and other governments, the law crossed from a routine property rule into forbidden foreign-affairs territory and could not be enforced against these heirs.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling limited states' ability to use probate and inheritance laws to pass judgment on foreign governments, especially Communist regimes during the Cold War. It signaled that state courts cannot make case-by-case findings about a foreign country's legitimacy, honesty, or human-rights record when deciding routine legal disputes, since that judgment belongs only to the President and Congress.
What changes now
The ruling is a final decision on the merits. The Oregon Supreme Court's judgment barring the East German heirs from the personal property was reversed, meaning the escheat law's confiscation-based requirement could no longer be enforced against them as applied. The decision did not overturn Clark v. Allen's treaty ruling but limited how far states can go in probate cases involving foreign heirs, a limit lower courts would apply going forward.
What this does not decide
The Court did not overrule its earlier treaty interpretation in Clark v. Allen, and it did not hold that all state reciprocity-based inheritance laws are unconstitutional. The ruling was narrower: it found Oregon's law unconstitutional only as applied, because of how state courts had actually been using it to judge foreign governments.
Concurrences and dissents
Concurrence — Justice Stewart
Justice Stewart, joined by Justice Brennan, agreed with the majority but would have gone further, holding that all three of the statute's requirements were unconstitutional on their face, not merely as applied. He argued that any serious attempt to apply the reciprocity, payment, or no-confiscation criteria would inevitably force state courts into evaluating foreign law, diplomacy, and government policy, an area reserved exclusively for the national government.
Concurrence — Justice Harlan
Justice Harlan agreed with reversing the judgment but disagreed with the majority's reasoning. He argued the Court should have first decided whether the 1923 treaty itself, properly construed, entitled the heirs to the personal property, which would have avoided the constitutional question. He concluded Clark v. Allen misread the treaty and that the majority's foreign-affairs holding rested on speculation rather than proven harm.
Dissent — Justice White
“I would affirm the judgment below.”White's opening statement disagreeing with the majority's foreign-affairs ruling.
Justice White would have affirmed the Oregon judgment. Agreeing with Justice Harlan's separate reasoning that the statute did not impermissibly interfere with foreign affairs, he also declined to overrule the Court's treaty construction in Clark v. Allen or similar earlier cases at this late date.
How the Court got there
The legal reasoning, step by step
- The Court declined to revisit its treaty interpretation from Clark v. Allen and instead asked whether Oregon's escheat law, as actually applied, improperly reached into foreign affairs, a power the Constitution gives only to the President and Congress.
- It explained that a state law having merely an 'incidental or indirect effect' on foreign countries does not violate this exclusive federal power, as Clark v. Allen had held; but a law with a more direct and persistent effect on international relations crosses the line.
- Reviewing a series of Oregon court rulings applying the statute's reciprocity and no-confiscation requirements, the Court found that judges were routinely evaluating the legitimacy, credibility, and political character of foreign governments, especially Communist ones, to decide who could inherit.
- The Court reasoned that this recurring judicial scrutiny of foreign regimes' laws, courts, and diplomatic assurances had more than an incidental effect on foreign relations and risked embarrassing the national government's foreign policy.
- Because this pattern amounted to individual states effectively setting their own foreign policy through probate courts, the Court concluded that Oregon's statute, as applied, intruded on the federal government's exclusive foreign-affairs power.
Doctrinal impact
Cases affected by this decision
Limits Clark v. Allen (331 U.S. 503)
The Court left Clark v. Allen's treaty interpretation intact but limited its reach by holding the Oregon law unconstitutional as applied.