Can a treaty ratified by the Senate trump the U.S. Constitution?

[ursavus.elemensis]

Can a treaty ratified by the Senate trump the U.S. Constitution? This point comes up from time to time in discussions regarding possible new treaties, and possible new approaches to regulate guns. Most people think a treaty would not be superior in authority to the provisions of the Constitution. Most people, however, have apparently not read the Constitution (or, at least they have not read it thoroughly enough.) Conservatives have been concerned about the "treaty supremacy" problem of Article 6 of the United States Constitution for about 60 years, but no successful effort has ever been mounted to ammend that article.

Article 6 states that treaties made pursuant to the mechanisms described in the constitution, (2/3 Senate ratification) are the supreme law of the land:

"All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

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.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. "

There is a 200 year history of case law that deals with the issue of National Supremacy as elucidated in Article 6, including but by no means limited to the following examples.

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796): "the Supreme Court held that the supremacy clause rendered null and void a state constitutional or statutory provision which was inconsistent with a treaty executed by the Federal Government"

Furthermore, from Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 335 (1816). State courts have both the power and the duty to enforce obligations arising under federal law, unless Congress gives the federal courts exclusive jurisdiction. Claflin v. Houseman, 93 U.S. 130 (1876); Second Employers' Liability Cases, 223 U.S. 1 (1912); Testa v. Katt, 330 U.S. 386 (1947): ''[it] is imperative upon the state judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States--'the supreme law of the land'.''

[Mike Irwin]

Looks like a job for Diana and the Supremes to figure out.

If there is conflict between the Constitution and some law, then it's the role of the judiciary to hash it out.

[Doc Intrepid]

Unless I'm mistaken, a bill (or two) recently ratified by the Senate and the House of Representatives forces nearly every American citizen to purchase a health insurance policy.

An argument could be made that such Senate and House ratifications trump the Bill of Rights...oops, a number of States Attorneys General beat me to it!

Just sayin'

[ursavus.elemensis]

Actually, I thought that the impending lawsuit from the various State Attorneys-General was likely to win and invalidate that recent law (or two). However, when I looked up this issue of treaties trumping the Constitution, and i started reading the case law, I was a little surprised to find that most of the caselaw does in fact suggest that the Federal government can, if enacted properly through Congress, make a law that forces us to buy health insurance. The issue will come down to the distinction between the commerce clause and the 10th Ammendment.

[ursavus.elemensis]

If any of you happen to have the book, "None Dare Call it Treason" by John A. Stormer on your bookshelf, re-read Chapter XIII, particularly starting on page 221. The author discusses the issue of "treaty supremacy" and Article 6. If you don't have that book, you might want to look around for it. There were at least 36 million copies printed, in 15 (or more) printings. My copy is from 1964 and I got it for free at a book exchange in 8th grade.

[Dragon55]

If the senate makes a treaty with a foreign power that infringes on my rights AND my congressman and president don't get a chance to fight it then I will not voluntarily abide by it.

[Edward429451]

...your congressman and your president? Fight it? Are you under the impression that they are on your side? LOL!!

Look there's only, what? 535 of them to bribe? Thats only hundreds of million dollars, not much by todays standards. They stand to make hundreds of billions or more if they can sell us out. We will have to fight to keep our country.

[knight0334]

There are later SCOTUS cases from the 1950's that it was ruled that treaties post ratification cannot trump the Constitution because the authority to make treaty comes from the Constitution. And for that treaty to have authority, it must comply with the US Constitution, if by incident that it is approved by the Senate the USC would still trump it. Only treaties and contracts in place PRIOR to the US Constitution must be honored and can trump our charter of government.

[thallub]

There are later SCOTUS cases from the 1950's that it was ruled that treaties post ratification cannot trump the Constitution because the authority to make treaty comes from the Constitution. And for that treaty to have authority, it must comply with the US Constitution, if by incident that it is approved by the Senate the USC would still trump it. Only treaties and contracts in place PRIOR to the US Constitution must be honored and can trump our charter of government.

+1

Excellent post.

[Al Norris]

The Weeks-McLean Act of 1913 was a law designed (among other things) to regulate hunting of migratory birds throughout the U.S. It was challenged as interfering with States rights (10th amendment claims) and began failing in one Circuit decision after another.

Fearing that the law would become completely invalidated at the judicial level, the Congress empowered the State Dept. to negotiate with the United Kingdom (for Canada) for a treaty to regulate migratory birds (this was later expanded by a treaty with Mexico and other central and south American countries).

After the Treaty was ratified and came into being, the Migratory Bird Treaty Act of 1918 was passed. The law, based upon the treaty, was reasoned that the new powers of Congress, were given by Treaty and was therefore lawful under Art VI.

The State of Missouri then sued the federal government (Missouri v. Holland, 252 U.S. 416) for violating the tenth amendment (the basis for the successful Weeks-McLean challenges). However, the SCOTUS held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. This was also the first time a certain phrase was used, and it was coined by Justice Holmes, as he referred to the "living constitution."

While it may be said that the treaty did not violate the constitution, it did give the Congress a power it did not hold before. The SCOTUS acknowledged this.

So while the Court in the 50's and 60's might have implied (said in dicta) that a treaty may not violate the constitution, Holland has never been overturned.

It can certainly be said that granting a new power to the Congress, without an express amendment, is a violation of that constitution. So Holland stands alone and in tension with later Court decisions.

[MTT TL]

Thank you antipitas, that was an excellent post.

I am curious however about the "later rulings"?

[thallub]

I am curious however about the "later rulings"?

How about this one.

In 2004 the World Court intervened on behalf of a Mexican national who was sentenced to death in Texas after he murdered two little girls. The World Court ordered The US to re-open the case. President George W. Bush in turn ordered the state of Texas to re-open the case. Texas refused to comply. The murderer appealed to SCOTUS citing the order of the World Court. The murderer and Bush were over-ruled by SCOTUS; 6-3.


http://www.jbs.org/index.php/jbs-new...-the-president

Mexican national Jose Medellin brutally raped and murdered two Houston teenagers in 1993. For his crime, he was tried, convicted and awarded the death penalty by a Texas court. After an appeal on his behalf, the U.S. Supreme Court ruled in 1998 that Medellin had received fair treatment and his conviction was upheld.

Because the murderer was not advised of his right to receive legal assistance from Mexico's consul, Mexico sued the United States in the World Court. In 2004, the United Nations body located in The Hague told the United States that it was obliged to reopen the case. Medellin's lawyers went back to court. The fate of the convicted murderer and that of 50 other Mexican nationals facing the death penalty in four separate states for similar crimes, would again come before the judges.

In 2005, President Bush announced his support for the World Court's ruling and told Texas to comply with it. Texas resisted and in November 2006, its Court of Criminal Appeals reviewed the case and rejected the latest appeal. Speaking for that court, Judge Michael Kaesler stated that Mr. Bush "had exceeded his constitutional authority by intruding into the independent powers" of his state's judicial body. At that point, lawyers for Medellin pressed on to the Supreme Court claiming that a Vienna Convention dealing with prisoner rights (from which the U.S. had already removed itself) and an article in the United Nations Charter created binding law for the United States. It was now the United Nations versus the United States!

On March 25th, in a 6-3 ruling, the Supreme Court rejected the latest appeal and effectively told the President that his powers are not unlimited. Chief Justice Roberts pointed out that Article 94 of the UN Charter provides only that "each member of the United Nations undertakes to comply" with World Court decisions. He maintained that "undertakes to comply" means that further action is needed, and it had never been undertaken by the U.S. Congress. In other words, a President by himself cannot make law based on some treaty. (Entry by the United States into the UN in 1945 has always been considered to have been accomplished by treaty, a very questionable stand that ought to be examined more carefully.)

Justice Roberts was joined in his decision by Justices Thomas, Scalia, Alito, Stevens and Kennedy. Dissenters included Justices Breyer, Ginsberg and Souter. Justice Breyer pointed to the Constitution's Article VI and claimed that treaties "shall be the supreme law of the land," an extremely dangerous position that could lead to undoing the entire Constitution. His attitude was roundly rejected by the men who wrote and commented on the Constitution from its earliest days. Hamilton, Madison, and Jefferson each claimed that treaty-making power is limited and can never supersede the Constitution.

I'll find another one or two tomorrow.

[Al Norris]

Doesn't mean what you think it does, thallub.

Chief Justice Roberts pointed out that Article 94 of the UN Charter provides only that "each member of the United Nations undertakes to comply" with World Court decisions. He maintained that "undertakes to comply" means that further action is needed, and it had never been undertaken by the U.S. Congress. In other words, a President by himself cannot make law based on some treaty.

The part I highlighted above is the key.

Congress never passed any laws to comply. If they had....

[BlueTrain]

Which particular treaty is of concern at the moment anyway? You know, the federal government used to make treaties with the Indians (but usually didn't keep them). Should the federal government enter into treaties with states?

[carguychris]

Which particular treaty is of concern at the moment anyway?

Although the OP never specifically said this, there are various UN proposals for treaties limiting international sales of small arms, and there's the possibility of a treaty with Mexico to limit the flow of illicit US arms to that country specifically.

Should the federal government enter into treaties with states?

Article I, Section 10 of the Constitution forbids the states from entering into treaties.

[Sefner]

Justice Breyer pointed to the Constitution's Article VI and claimed that treaties "shall be the supreme law of the land," an extremely dangerous position that could lead to undoing the entire Constitution.

Forgive my ignorance, but I wonder if Justice Breyer and I are reading the same document.

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;

To me this sounds like a list of things that are the "supreme Law of the Land". Those things are: This Constitution, the Laws of the United States, and all the Treaties made. I do not read that as saying that Treaties are the supreme Law, that's kind of self defeating. There is no way possible that the Founder wrote that trying to make it so that Treaties would trump the Constitution. There would be no reason for one if that was the case.

Anyways, Justice Breyer needs to re-read that clause. It's the clause that says that between any conflicting State law and Federal law that the Federal law always wins out. Not that the Constitution is superseded by a Treaty.

BlueTrain, I think there is some UN Treaty that bans handguns or all guns or something of that nature that has the "number-of-guns-on-your-tax-return" people all in a tizzy. There is a locked thread about it.

[carguychris]

However, the SCOTUS held that the federal government's ability to make treaties is supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment. This was also the first time a certain phrase was used, and it was coined by Justice Holmes, as he referred to the "living constitution."

While it may be said that the treaty did not violate the constitution, it did give the Congress a power it did not hold before. The SCOTUS acknowledged this.

So while the Court in the 50's and 60's might have implied (said in dicta) that a treaty may not violate the constitution, Holland has never been overturned.

Antitipas, this is a fascinating post. Thank you or ed-u-ma-cating me!

While Missouri v. Holland was certainly an interesting test of states' rights, I'm curious whether this ruling would have any bearing on a theoretical treaty that could infringe on the individual rights of US citizens. I don't think this has ever been tested by the SCOTUS. Thoughts?

[Doc Intrepid]

BlueTrain,

Here are a few quick Wiki's that provide background commentary on this discussion of treaties, beginning with (an interim) draft of one of the Treaties being discussed (date 2006):

See especially "Cluster 4" and "Cluster 7" discusses 'disarmament' -
http://www.un.org/News/Press/docs/20...is3335.doc.htm
(cited as footnote #5 in the IANSA Wiki, 2008)

Note in the third sentence where it states: "The draft was approved by a vote of 139 in favour to 1 against ( United States), with 24 abstentions (see Annex X)." (emphasis added)

The US representative to the UN at the time was this fellow -
http://en.wikipedia.org/wiki/John_R._Bolton

A quick description of the benefits of such Treaties, courtesy of one of the architects -
http://en.wikipedia.org/wiki/Rebecca_Peters

And the organization working within the UN structure to promote such Treaties -
http://en.wikipedia.org/wiki/Interna..._on_Small_Arms
(see especially the footnotes.)


Anyone who thinks the entire Treaty issue is farfetched ought to read the history leading up to what occurred in Australia. Gun owners in Australia have gone on record noting that it did not occur overnight. Although no treaties were involved in that case, it may reasonably be inferred that IANSA is interested in pursuing similar outcomes more globally.

As to whether treaties such as the one above would be binding on US citizens or not, I suspect that there are very few precedents to examine.

FWIW.

[misnomerga]

I agree with you Doc Intrepid. No idea is far fetched to this administration with its goals and agendas. One only has to look at what plans were hatched just to get the health bill passed. First it was the super majority 60 votes, then when that was lost because of the Scott Brown win it became a simple majority of 50 +1. When the House was in danger of growing a spine and rejecting this bill it became a up or down vote on the previous vote and not the bill itself, then it became the invocation of the Slaughter rule, etc, etc, etc. With that going on I would put nothing past them.

[carguychris]

One only has to look at what plans were hatched just to get the health bill passed. First it was the super majority 60 votes, then when that was lost because of the Scott Brown win it became a simple majority of 50 +1. When the House was in danger of growing a spine and rejecting this bill it became a up or down vote on the previous vote and not the bill itself, then it became the invocation of the Slaughter rule, etc, etc, etc.

That may be true, but the Constitution requires a 2/3 majority in the Senate to ratify a treaty. Period. There's no leeway for manipulation of procedural rules like there is for domestic legislation.

IMHO in this political climate, it's extraordinarily unlikely that the administration can muster a 2/3 majority of Senators to vote "Yea" on a treaty that would substantially infringe on the RKBA. OTOH I still think it's important to read the details of any treaty proposal very carefully, particularly with regards to Mexico. A Mexican treaty offers more potential carrots to dangle in front of left-leaning Republican senators than a UN treaty would.

[misnomerga]

Curious CarGuyChris what distinguishes a Mexican Treaty from other treaties? Would they both not be considered a treaty with a foreign country regardless of whether it is Mexico or Russia? Could you elaborate on what makes one different over the other. I am guessing that because it is Mexico there is a danger of being able to get the 2/3rds vote and there may be a anti-gun clause imbedded somewhere in there. Am I on the right track?

[Bartholomew Roberts]

Can a treaty ratified by the Senate trump the U.S. Constitution?

No. It cannot trump the Constitution. Reid v. Covert, 354 U.S. 1 (1957). This case was where the wife of an Airman had killed her husband in England on post. At the time, England and the United States had an executive agreement that all such cases would be tried in military court and she was tried by courts martial. Her lawyer petitioned for a hearing with in D.C. outside the UCMJ. A similar case from Japan was consolidated with Mrs. Covert's case.

Originally Posted by Justice Black

The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the Supremacy Clause of the Constitution, declares:

"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;... ."

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...

...There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. 33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it 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."
This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. 34 It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

There is nothing in Missouri v. Holland, 252 U.S. 416 , which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier. 35

[carguychris]

Curious CarGuyChris what distinguishes a Mexican Treaty from other treaties? ... I am guessing that because it is Mexico there is a danger of being able to get the 2/3rds vote and there may be a anti-gun clause imbedded somewhere in there. Am I on the right track?

Yes, you are on the right track. Other than the gun-smuggling issue, there are numerous other issues that both countries are concerned about- namely drugs, immigration, and trade. Everything will be on the table once the US and Mexico start negotiating, and any deals that get cut are likely to be very complex, with lots of give and take. My concern is that a few moderate senators could be enticed into accepting "mild" RKBA restrictions to secure Mexico's cooperation with a "Get Tough on Immigration" deal.

OTOH any UN / European arms deal is more likely to be straightforward, with fewer grey areas about what the treaty says and what it's intended to accomplish. Unlike the Mexicans, the Europeans are not under crushing domestic pressure to show that they can control their own borders and maintain law and order. They don't need the treaty to succeed. Their politicians are likely to score just as many (if not more) political points at home if the treaty is rejected by the US Senate. ("Tut tut tut, we tried our best, but you know those crazy American cowboys...") Furthermore, some European countries have substantial arms exporting industries but tight gun controls at home; such countries may purposefully insert "poison pill" provisions into the treaty to guarantee US Senate rejection, allowing them to take a "Tough on Guns" stance with liberal voters while simultaneously keeping the gun factories humming and their labor unions happy.

[Al Norris]

State of Missouri v. Holland, U.S. Game Warden, 252 U.S. 416.

Mr. Justice Holmes, for the majority:

... If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government. ...

It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. [this refers to the Weeks-McLean Act of 1913, which was struck down] ...

Whether the two cases cited were decided rightly or not, they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power, but they must be ascertained in a different way. [Here, Justice Holmes begins to make a clear distinction between "normal" acts of Congress and Acts made pursuant to a Treaty] It is obvious that there may be matters of the sharpest exigency for the national wellbeing that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. [With this pronouncement, Justice Holmes declares that powers not found within the Constitution, may be found by an act of Treaty - This is a negation of the 10th amendment, which says in effect: Those powers not enumerated, are forbidden to the central government] ... With regard to that we may add that, when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago. [And here we have it - That "Living Constitution" that is the darling of progressives. We don't need to adhere to those old dead words, we can simply reinterpret them in a modern context!] The treaty in question does not contravene any prohibitory words to be found in the Constitution. [but, read on!] The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that Amendment has reserved. [Here, we see the death of the 10th amendment. No amendment need be enacted, merely a Treaty ratified by the Senate, to suborn the Constitution]

Now contrast the above with what Justice Black wrote in Reid v. Covert:

The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. ...

There is nothing in Missouri v. Holland, 252 U.S. 416 , which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.

Both Courts are using the assumption that if something is not expressly prohibited, then it is permitted. That is directly at odds with what the 10th amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As long as the Court (and the Congress) hold to the idea that the government can do whatever it wants, as long as it is not "inconsistent" (that is, the Constitution does not expressly prohibit the action) with the Constitution, then we are at peril.

[Bartholomew Roberts]

Both Courts are using the assumption that if something is not expressly prohibited, then it is permitted.

I would disagree that this is what the Covert opinion is saying. I think they took a broad view of the treaty making power and determined that this power had to be superior to the reserved powers to the States or Congress would effectively be unable to sign any treaty. I don't think the Covert opinion is suggesting that treaties can do anything not expressly prohibited.

As long as the Court (and the Congress) hold to the idea that the government can do whatever it wants, as long as it is not "inconsistent" (that is, the Constitution does not expressly prohibit the action) with the Constitution, then we are at peril.

I would agree with the general sentiment that some in the Judicial and Legislative branches hold these ideas and that they are inconsistent with good government; but in the case of the Second Amendment, there is an express prohibition in the Constitution (despite a mighty effort by many legal scholars to read it out of existence).