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Old April 6, 2010, 10:35 PM   #26
Al Norris
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Quote:
Originally Posted by Covert Court
There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution.
Note that the above does not mean that the treaty involved is consistent with the delegated powers. Only that there is nothing inconsistent, if one takes the view that the 10th is something other than a part of the Constitution.

The problem here is that the 10th is part of the constitution (see Art V). Since it was ratified after the Constitution, it modifies said document. Specifically, any treaty made pursuant to Art. VI, cannot give the Congress a power or authority it did not have to begin with.

That was why the Weeks-McLean Act was being struck down. Congress had no authority. The Holland decision was flat wrong. Despite the feel good words of Justice Black in Covert, he explicitly agreed with the Holland decision.
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Old April 7, 2010, 09:23 AM   #27
Bartholomew Roberts
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Well, Holland is a 1920 case if I recall correctly. If you look at the treaty making power from a 1920 view of Constitutional interpretation and then say that Congress has no power to make any treaty that would affect the states rights under the 10th Amendment, you have severely curtailed Congress's ability to make treaties and called into question several existing treaties at the time.

So while I agree that the majority opinion in Holland was wrong, I can understand why they reached the decision they did.

Quote:
Despite the feel good words of Justice Black in Covert, he explicitly agreed with the Holland decision.
Well, I am no expert in this area or even well-read in it; but it strikes me that Justice Black recognizes the problems with Holland but at the same time is bound by stare decisis and wants to get as much support as possible for his opinion in Reid v. Covert, in which he had 4 votes and 2 concurrences.

He writes an opinion that narrows Holland considerably while at the same time purporting to uphold it. This isn't unheard of in Supreme Court cases (for example, substantive due process incorporation of the 14th Amendment to create the same rights Slaughterhouse denied).

The only real problem that I see Holland presenting is that like all horror movie monsters, until you see the body and cut off its head, you'd better treat it as if it could jump back to life any time - and there are certainly people out there who would like to see it revived. However, I do not think the current Court isn't going to be the one that attempts that.
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Old April 14, 2010, 03:53 PM   #28
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So a treaty signed by the President needs to be approved by Congress in a 2/3 majority. If ratified by Congress, does it does become "the law of the land" trumping the Constitution?
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Old April 14, 2010, 04:09 PM   #29
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Quote:
If ratified by Congress, does it does become "the law of the land" trumping the Constitution?
Sorta, if it is ratified by congress and does not contradict/ undermine the constitution. And, it would only deal with international affairs, not domestic ones, all it would take is one Pro 2A SCOTUS decision to throw it out.
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Old April 14, 2010, 04:14 PM   #30
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Quote:
Originally Posted by Maromero
So a treaty signed by the President needs to be approved by Congress in a 2/3 majority. If ratified by Congress, does it does become "the law of the land" trumping the Constitution?
No, it doesn't "trump the constitution."

A Google search will quickly turn up many sources which explain this. To cite just one example:

An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments), was provided by a statement by Jefferson--presumably reflecting at the time the prevailing opinion among governmental leaders also and especially leaders in Congress--in his 1801 A Manual of Parliamentary Practice. It was written by him as Vice President, while serving as the presiding officer of the Senate. It was reprinted in many editions in the following generations, being incorporated in full in the "Manual" of the Senate and in the "Manual" of the House of Representatives (as to the part applicable to the particular body in each case). Use of his Manual to some extent continues at the present writing. In this guide, Jefferson stated with regard to the Treaty Clause and power:
[Section 52.] "Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By 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. 3. It must have meant to except out of these 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." (Emphasis added.)
This brief review of even a small part of the pertinent, historical evidence is sufficient to make inescapable the conclusion that the Framing and Ratifying Conventions intended the Treaty Clause to be limited by the Constitution; that in order to be valid a treaty, like any Federal law (Act of Congress), must be in strict conformity to the Constitution, as amended. The pertinent evidence supporting this proposition is so conclusive that not to accept it would mean (to use Jefferson's striking phraseology in another connection) that human reason must be surrendered as a vain and useless faculty, given to bewilder and not to guide us. The United States Supreme Court has repeatedly decided that the foregoing conclusion is correct, that the treaty-power under the Treaty Clause is limited by the Constitution as a whole; and the Court most recently confirmed this, upon full consideration, in the 1957 Reid case. [My emphasis.]


Note that the first sentence of this passage expressly states that treaties not only cannot override the Constitution, they cannot be used to make domestic law: they may only concern relations with foreign governments. Ratification by Congress doesn't mean that they become domestic law, just that Congress gets a say in whether a given treaty is adopted at all.
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Last edited by Vanya; April 15, 2010 at 12:06 PM. Reason: modification of tone. :)
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Old April 15, 2010, 09:00 PM   #31
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The simple answer is that NO law can override the Constitution.

While a treaty may be "the supreme law of the land' it is still a LAW and must comport with the Constitution (a superior document).
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Old April 15, 2010, 10:48 PM   #32
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Thank You Vanya...I do believe that LONG but completely necessary post puts this argument to rest
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Old April 16, 2010, 03:43 AM   #33
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I always thought the clause "... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." takes care of the "Treaty Supremacy" idiocy.
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Old April 16, 2010, 08:03 AM   #34
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Vanya, your reference to LexRex is all well and good. However, you will note that foreign aid (which your article makes out to be unconstitutional), is widely used by the Congress, is it not?

Then there is that little matter of Missouri v. Holland, which is still law.

I submit that it is not as clear as everyone makes it.
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Old April 16, 2010, 08:38 AM   #35
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Quote:
Vanya, your reference to LexRex is all well and good. However, you will note that foreign aid (which your article makes out to be unconstitutional), is widely used by the Congress, is it not?
Actually, you missed the part where it says "This means that any donation abroad of funds or things, military or any other kind, by the Federal government--in order to be authorized by the Constitution--must contribute substantially and directly to the "common Defence... of the United States," meaning the national defense: the actual, military, physical defense of the American homeland."

It is the position of the US, and has been under Republican and Democratic administrations, that giving aid to poorer, unstable governments is essential to the defense of the US under the premise that any unstable nation poses a threat to the US as a sovereign nation.

Under that assumption foreign aid is directly in line with the constitution. Further, if you look at the countries the US gives aid to you can see the strategic military benefit to ensuring that said countries remain stable.
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Old April 16, 2010, 12:28 PM   #36
Vanya
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Quote:
Originally Posted by Antipitas
I submit that it is not as clear as everyone makes it.
Agreed.

But there are actually three separate issues here: The first is one of principle: can a treaty, once ratified by the Senate, legally trump the Constitution? I was addressing this in my post (which was moved here from another thread, I presume by Glenn Meyer when he closed that one) -- and I think it's fairly clear that the answer to that question is no.

Second, however, is that this is complicated by the fact that not everyone interprets the Constitution in the same way, and so people disagree as to what counts as "trumping" it.

And third, of course, is that the President and Congress now routinely flout the Constitution in the name of national security -- obvious examples being the egregious history of the Patriot Act (mainly under the previous Administration), the NSA's ongoing warrantless spying on U.S. citizens, and the U.S. Government's current project of assassinating Muslim cleric Anwar al-Awlaki , who, no matter how reprehensible his support for terrorism, is an American citizen and entitled to due process.

Given they've established that national security trumps the Constitution, there's no reason to assume that they won't ignore it in other areas, or merely label everything a matter of "national security"...

So, yes, while simple in principle, of course it's far less clear in practice.
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Old April 16, 2010, 01:46 PM   #37
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I believe Wildalaska wrote on another post (regarding the new S.Crt. appointment hearings) that it was going to be an intresting summer. In light of this discusion those words might as well be profetic.
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Old April 16, 2010, 01:47 PM   #38
Al Norris
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Quote:
Originally Posted by DZcarry
It is the position of the US, and has been under Republican and Democratic administrations, that giving aid to poorer, unstable governments is essential to the defense of the US under the premise that any unstable nation poses a threat to the US as a sovereign nation.
I am aware of that interpretation, by both the Congress and the Court.

Just as I am aware that both interpret that once an item moves in interstate commerce, it is always in commerce (or as per Raich, any economic impact whatsoever, is commerce).

While I don't have to agree with these interpretations, I do have to abide by them.

Vanya? It was I who moved the posts. They were relevant to this thread.

I happen to agree with you on this, but I also know that despite what the Court says now, it is still a precedent that they can fall back upon.
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