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Treaty Power and The Supremacy Clause

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Does Treaty Law supersede the Constitution?
While this notion that Treaty Law supersedes the constitution seems counter-intuitive to the layman, many legal scholars seem to agree that treaties are the supreme law of the land; and therefore, it follows that treaties supersede the constitution. Let’s take a closer look at the wording and intent of the authors of the “Supremacy Clause”. Does it logically follow that supremacy implies non-constraint?

The “Supremacy Clause ” of the U.S. Constitution is contained in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Analysis
Let’s break-down the simple wording here and shed some light on its meaning and construct. This clause contains 4 principal parts the fourth part of which can be subdivided into two sub-parts.  Parts 1 and 2 are the subjects of the clause, part 3 is the action whereas part 4 is the object acted upon. The object is described as the impact of the action upon both the judicial and legislative branches of the several states.

Part 1: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
This clearly indicates that all federal law, assuming it conforms to the grant of power contained in the constitution, is the supreme law of the land. Notice, however, that the clause is constrained by the notion that the laws must be “in Pursuance thereof” or in conformity with the existing framework of the constitution. This is a prime example of Supremacy which is constrained.

Part 2: … and all Treaties made, or which shall be made, under the Authority of the United States
At first glance one notices a strange construction in part two which describes two sets of treaties. This statement seeks to explicitly define the supremacy of both existing treaties and future treaties. The framers had every intention of honoring existing treaties which were entered into prior to adoption of the Constitution. This was important because it included the peace treaty which ended hostilities during the War for Independence with Great Britain. So we see that past treaties made could not have been “made in Pursuance” of the Constitution but they were ratified under the Authority of the “United States” since this entity existed under the Articles of Confederation and would remain so under the new Constitutional framework. The framers were intent upon enforcing the treaties entered into under the Articles of Confederation and this is why Federal Law and Treaty Law are defined within a complex construct within this clause. It is clear that all future treaties would continue to be constrained by the proper “Authority of the United States”. Where is the “Authority of the United States” defined? Is that not the sole purpose of the Constitution? The Constitution itself must not be superseded by a treaty because a treaty must be executed under proper authority.

Part 3: … shall be the supreme Law of the Land;
It is clear that the framers intended that the states would abide by all proper laws and treaties.

Part 4: … and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The legislatures of the states, the constitutions of the states, and the judiciary of the states would agree to abide by federal law and treaty law, provided that the laws were in “pursuance of the constitution”  or in today’s terms “constitutional” and that treaties were either made within the framework of the constitution or pre-existed it. Notice the distinction between “the constitution” in part 4 and “This constitution” in part 1 of the clause. The framers are drawing a distinction between the constitution they are drafting and the various existing constitutions which each state was currently operating under. So it is clear that the state constitutions would conform to federal law and treaty law, provided they were enacted within the grant of power defined in the Federal Constitution of which the states were party to ratification. The States would also continue to abide by treaties currently in affect prior to adoption of the federal constitution under debate.

Where does the notion that Treaty Law Supersedes the Constitution Originate?
It is difficult to know where this myth originated, however, we have an early reference to it. It is entirely justifiable to say that this notion may not have originated with John Foster Dulles, however, it was certainly popularized by his attitudes. Ideas have consequences:

John Foster Dulles

Time’s Man of the Year 1954

“The treaty making power is an extraordinary power liable to abuse. Treaties make international law and they make domestic law. Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for Congressional laws are invalid if they do not conform to the Constitution whereas treaty laws can override the Constitution. Treaties for example, can take powers away from the Congress and give them to the President; they can take powers from the state and give them to the Federal Government or to some international body and they can cut across the rights given to the people by the Constitutional Bill of Rights.”
John Foster Dulles (April 12, 1952)
Louisville, Kentucky
(Secretary of State Eisenhower Administration)

 Clearly, Mr. Dulles was attempting to exploit a populace unfamiliar with the Constitution. The very fact that he asserted that rights are “given to the people by the Constitutional Bill of Rights” is evidence enough that he was attempting to contort the meaning of the Constitution. Afterall, the Constitution does not give rights, it acknowledges and protects God-given Rights. That is an important distinction because rights given by government can later be withdrawn, but our Bill of Rights asserts that “Congress shall make no law” which would seek to undermine or diminish the natural rights of its citizens.

I have already shown that Mr. Dulles’ interpretation of the Treaty-Making power of our Government is false. However, I am not alone in my opinion. The framers of this clause spoke to its intent. So here are some words from the authors and ratifiers:

James Madison

James Madison

I do not conceive that power is given to the President and the Senate to dismember the empire, or alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation .
— James Madison, “Father of the Constitution”  from Elliott’s Debates

Thomas JeffersonBy the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated…. It must have meant to except out of those the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.
— Thomas Jefferson
 A Manual of Parliamentary Practice, p. 110. 1873.

I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution.
— Thomas Jefferson
 a letter to Wilson Cary Nicholas The Works of Thomas Jefferson, September 7, 1803

Alexander Hamilton

Alexander Hamilton

The only constitutional exception to the power of making treaties is, that it shall not change the Constitution…. On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null.
— Alexander Hamilton
Alexander Hamilton and the Founding of the Nation (1957), Richard B. Morris

 “A treaty cannot be made, which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States.”
– Alexander Hamilton

And finally, further evidence in support of my opinion is found in the Supreme Court.  The United States Supreme Court in Reid v. Covert (1957) first quoted the Article VI, Section 2 supremacy clause I quoted above, then the Court declares:

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result…. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

Also The United States Supreme Court in Geofroy v. Riggs, 133 U.S. 258, 267 , declared:

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”

In addition,  Treaty Law does not necessarily Supersede Federal Law. According to the US Supreme Court in Whitney v. Robertson, 124 U.S. 190 , the Court stated:

“By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other…. [I]f the two are inconsistent, the one last in date will control the other….”

Reference: 1987 Treaties and the Constitution.pdf
Reference: 1992 Treaties Versus the Constitution.pdf
Reference: 1997 No Amendment Needed.pdf
Reference: 2001 Treaties and the Constitution.pdf
Reference: 2009 Lord Monckton, Copenhagen Treaty.pdf

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Written by Mark Affleck

September 9, 2011 at 3:25 pm

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