Treaties and the Constitution
by George C. Detweiler
Contrary to current internationalist misrepresentations, the Founding
Fathers never intended that treaty law supersede the Constitution.
Nearly 50 years ago, John Foster Dulles, secretary of state under President Dwight
Eisenhower, asserted that "treaty law can override the Constitution. Treaties, for
example … can cut across the rights given the people by their constitutional Bill of
Rights." Leaving aside the fact that the Constitution and Bill of Rights protect
rights, rather than grant them, Dulles’ calculated misrepresentation of the
treaty-making power serves as a timely warning today, as a globalist political elite
tirelessly promotes UN treaties and conventions that imperil long-cherished American
freedoms.
Perhaps the most suitable example of a UN treaty that would "cut across"
rights protected by the Constitution is the International Criminal Court (ICC) statute,
which would create a permanent, 18-judge tribunal with a mandate over every living human
being. Dr. Charles Rice of the University of Notre Dame Law School describes the ICC
treaty as a measure that would "cancel the Fourth of July" by making all
Americans subject to trial, in a foreign land, before foreign judges empowered to make
"law" according to their whims. This arrangement would recreate one of the key
offenses of the British Crown cited in the Declaration of Independence — that of
subjecting Americans "to Jurisdiction foreign to our Constitution, and unacknowledged
by our Laws...."
Lee Casey, a former Justice Department Counsel, has pointed out that the ICC treaty
"contains no habeas corpus provisions, no right to bail, and no other means of
compelling the [court] to conduct a speedy trial." Under the "international
standards" that may govern the ICC, Casey further points out, suspects may be
detained for five years or more without being charged with a crime. In addition, those
arraigned before the UN tribunals established to prosecute "war crimes" in
Yugoslavia and Rwanda — which serve as precedent-generating models for the permanent
ICC — have been denied nearly all of the protections and immunities guaranteed by the
U.S. Bill of Rights.
Defendants before those tribunals have been denied the right to defense counsel of
their choice; they have been denied the right to confront their accusers; they have been
required to offer self-incriminating testimony, and informed that refusal to do so would
be considered evidence of guilt. Even more outrageous is the Stalinesque means used by
these UN tribunals to carry out their judgments. British legal activist Barry Crawford,
who has been an observer at the UN’s tribunal for Rwanda, warns that "in order
to enforce its edicts, people have been quite literally kidnapped and detained in secret
locations and denied access to defense counsel." Identical criminal methods have been
used by officials at the UN’s tribunal for Yugoslavia. But the most outrageous aspect
of the ICC treaty is this: After the pact has been signed and ratified by 60 nations, it
will go into effect, thereby claiming world-wide jurisdiction — including the power
to arrest and try citizens of nations (including Americans) that refuse to participate in
the court.
Critics of the ICC treaty, particularly those in the Pentagon who are understandably
concerned that U.S. military personnel could find themselves subject to vindictive
prosecution, have urged the president not to sign the treaty, and the Senate not to ratify
the document should it be signed. However, relatively few of the ICC’s opponents have
criticized the premise that the president and Senate have the power to commit our nation
to a treaty that would inflict upon our nation the horrors described above. Indeed, most
commentary about the ICC and similar UN treaties reflects the same misunderstanding of the
Constitution’s "Supremacy Clause" that was propagated by John Foster Dulles
so long ago.
Treaties and Rights
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.
As the Constitution was being constructed at the Philadelphia Convention of 1787, the
experience of the previous few years made it abundantly clear that it was essential to
establish the central government’s power to conduct foreign affairs. It was necessary
that the United States speak with one voice in matters of international diplomacy. To have
13 individual and separate states each conducting its own foreign policy, making its own
treaties and sending and receiving its own ambassadors would have been an invitation to
chaos; to have 50 states doing so today would be the quintessence of insanity.
But the powers delegated to the federal government to conduct foreign affairs —
including the treaty-making power — are carefully limited and checked by the
Constitution. The Framers did not present the federal government with vast, unenumerated,
or unaccountable powers in either domestic or foreign policy. It was certainly never
intended, as Dulles and others of his ilk insist, that the federal government could use
the treaty-making power to evade constitutional limits upon its powers. And it is the
purest absurdity to believe that statesmen who had just wrested our nation’s
independence from a globe-spanning empire would create a treaty-making provision through
which our independence could be signed away.
Addressing the scope and limits of the Constitution’s treaty power, James Madison
— often described as the father of the Constitution — said the following:
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.
Thomas Jefferson emphatically agreed with Madison’s depiction of the limits placed
upon the treaty power. If the treaty-making power is "boundless," warned
Jefferson, "then we have no Constitution." On another occasion, Jefferson
elaborated:
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.... 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. [Emphasis added.]
Alexander Hamilton was in perfect agreement with both Madison and Jefferson. "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." (Emphasis added.)
The observations of Jefferson and Hamilton are particularly valuable in light of the
danger posed by the ICC treaty. Since the president and Senate are strictly and explicitly
forbidden by the Constitution to deny the protections and immunities guaranteed by the
Bill of Rights, they have no authority to conclude a treaty that would have the same
result. To paraphrase Hamilton, any such treaty signed by the president and ratified by
the Senate would, on "natural principles," be null and void.
Laws of the Land
The language of Article VI clearly states that in the event of a conflict between a
treaty and a state constitution or statute, the treaty trumps the state enactments.
Analysis of the relationship between the Constitution and treaties and federal statutes
requires some resort to the rules of grammar and punctuation and to history.
Two separate categories of laws are declared to be the supreme law of the land.
Category one is the Constitution and laws of the United States made in pursuance
thereof. The history of the Republic is replete with examples of U.S. laws which are
not made in pursuance of the Constitution and which the courts hold to be void. Although
the Constitution is (to use an academic legal term) the "super supreme" above
all other law, the Founders expanded the term "supreme law of the land" to
include constitutionally sound laws enacted to carry out the specific functions assigned
to the federal government. Pockets of misunderstanding have developed when the second
category is considered — treaties.
The Founders were learned men, well versed in the use of language, the law, and
politics. They wrote clearly and precisely. Note that it is not all treaties that
are declared to be the supreme law of the land, but only those made under the authority
of the United States. Popular misconceptions center around trying to apply the
language "made in pursuance thereof" to treaties as well as to laws of Congress.
Under this misreading, it would become laws of Congress and treaties made in pursuance of
the Constitution which are the supreme law. That is not the way the Constitution was
written. The reference to enactments made "in pursuance thereof" is
limited to laws of Congress. A semicolon follows, which sets apart and establishes the
second category, treaties, made under the authority of the United States. What is the
reason and the effect of creating the two categories? Did the Founders intend that
treaties were supreme over the Constitution or statutes passed by Congress? In addition to
the Founders’ insights cited above, history and decisions of the U.S. Supreme Court
answer both questions in the negative.
Hostilities between England and the United States during the War of Independence came
to a formal end with the approval of the Treaty of Paris in 1783 when the Articles of
Confederation were still in effect, six years before the Constitution was approved in
1789. In creating the Constitution, the Framers wanted to preserve the viability of the
Treaty of Paris and perhaps other treaties already in existence when the Constitution was
adopted. They knew that if the Constitution were worded so that only treaties made
pursuant to the Constitution were supreme, it would have voided all treaties made before
the Constitution became effective. This they clearly did not want to do.
In order to preserve the earlier treaties, the Framers composed wording which gives
supremacy to treaties made under the authority of the United States. Since the earlier
treaties were made under such authority, their efficacy was preserved. Had those
treaties not existed, the founders could have written Article VI to provide that the
Constitution, federal statutes, and treaties made pursuant thereto would be the supreme
law of the land. What, then, does a treaty made under the authority of the United States
mean in post-Constitution times? Decisions by the Supreme Court suggest that the meaning
of requiring treaties to be made "under the authority of the United States" can
be read as identical to the requirement that federal statutes be "made in pursuance
thereof [the Constitution]."
The Founders’ foresight was vindicated in one of the first decisions by the
Supreme Court applying the Supremacy Clause, Ware v. Hylton (1793). During the war
years, British creditors were unable to bring suit for debts owed them by citizens of
Virginia and other states. Virginia passed laws that permitted debtors to pay into the
treasurer of the state amounts owed to these creditors. The defendant had made such a
payment and, under Virginia law, been discharged of his obligation to pay his British
creditor. The Treaty of Paris provided that creditors on both sides of the conflict could
recover money owed to them despite any state law to the contrary. The treaty and the
Virginia statutes were in direct conflict. Applying Article VI, the Court found that the
treaty prevailed and the creditors could proceed to recover the amounts owed them.
Later cases developed the rule that treaties, like federal statutes and state
constitutions and statutes, which violate the Constitution are void. Chief Justice of the
United States Joseph Story expressed the consensus of constitutional scholars of the
previous century when he wrote: "[T]hough the power is thus general and unrestricted,
it is not to be so construed as to destroy the fundamental laws of the state. A power
given by the Constitution cannot be construed to authorize a destruction of other powers
given in the same instrument.... A treaty to change the organization of the Government, or
to annihilate its sovereignty, to overturn its republican form, or to deprive it of its
constitutional powers, would be void; because it would destroy what it was designed merely
to fulfill, the will of the people."
Defying Constitutional Limits
Many of the cultivated misunderstandings about the Supremacy Clause so prevalent today
were prefigured in the Supreme Court’s opinion in United States v. Curtiss-Wright
Export Corp. (1936). That decision dealt with the scope of presidential power in
conducting foreign policy and foreign relations. The Court held: "The broad statement
that the federal government can exercise no powers except those specifically enumerated in
the Constitution, and such implied powers as are necessary and proper to carry into effect
the enumerated powers, is categorically true only in respect of our internal
affairs." Dispensing with the Founders’ understanding that the federal
government has only those powers specifically granted to it, the Court declared that
"the investment of the federal government with the powers of external sovereignty did
not depend upon the affirmative grants of the Constitution. The powers to declare and wage
war, to conclude peace, to make treaties, to maintain diplomatic relations with other
sovereignties, if they had never been mentioned in the Constitution, would have vested in
the federal government as necessary concomitants of nationality."
Rather than deriving its powers from specific constitutional assignments, continued the
Court, the central government can claim powers as it deems them to be "inherently
inseparable from the conception of nationality." Such powers include those necessary
"to acquire territory by discovery and occupation … to expel undesirable aliens
… to make such international agreements as do not constitute treaties in the
constitutional sense...." Although none of these powers "is expressly affirmed
by the Constitution," the Court concluded that they are supposedly legitimate because
they are "in the law of nations" — or what is now referred to as
"international law."
Other Precedents
Subsequent federal court decisions have essayed a sounder constitutional course. In
1947, in Amaya v. Standard Oil & Gas Co., a federal appeals court found that
"the treaty-making power does not extend ‘So far as to authorize what the
constitution forbids.’" In 1957, in Reid v. Covert, the Supreme Court
clearly ruled that constitutional guarantees cannot be abolished by either treaty or
statute, stating: "no agreement with a foreign nation can confer power on Congress,
or on any other branch of Government, which is free from the restraints of the
Constitution."
In its review of the Supremacy Clause in Reid v. Covert, the Court offered a
compelling demolition of the idea that treaties can be used to "cut across"
constitutionally protected rights:
There is nothing in this language which intimates that treaties and laws enacted
pursuant to them do not have to comply with 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. These debates as well as the history that
surrounds the adoption of the treaty provision of Article VI make it clear that the reason
treaties were not limited to those made in ‘pursuance’ of the Constitution was
so that agreements made by the United States under the Articles of Confederation,
including the important treaties which concluded the Revolutionary War, would remain in
effect. It would be manifestly contrary to the objectives of those who created the
Constitution, as well as those who were responsible for the Bill of Rights — let
alone alien to our entire constitutional history and tradition — to construe Article
VI as permitting the United States to exercise power under an international agreement
without observing constitutional prohibitions.
"There is nothing new or unique about what we say here," concluded the
Court’s ruling. "This Court has regularly and uniformly recognized the supremacy
of the Constitution over a treaty." Although Reid v. Covert remains the
controlling precedent, the excerpt cited above from the Court’s ruling in United
States v. Curtiss-Wright Export Corp. suggests that the Court hasn’t been
entirely consistent in upholding the supremacy of the Constitution — which is why
those committed to preserving our Constitution and our national independence cannot
confide in the wisdom and restraint of the Supreme Court.
Congress Is the Key
The true purpose of the Article VI Supremacy Clause is to designate the Constitution as
the "super supreme" to which all other enactments — treaties, federal
statutes, state constitutions or statutes — must conform. In keeping with the
federalist structure of the Constitution, treaties can only be used to carry out the
"few and defined" powers conferred upon the federal government; otherwise, they
are, from a constitutional perspective, null and void.
Treaties are on a par with federal statutes. They supersede prior statutes and may, in
turn, be superseded by later ones. Why, then, are so many acts of the federal government
which are done in compliance with treaties or international agreements, yet are in
violation of the Constitution, allowed to go unchallenged? One example of this is the
frequency with which presidents have cited U.S. treaties with the UN and its subsidiaries
(such as NATO and SEATO) to justify sending our troops to war without a congressional
declaration.
Although the Supreme Court has seen fit to declare "the order of priorities"
under Article VI, it has been reluctant to declare any given treaty to be
unconstitutional. Additionally, since courts only decide cases and controversies, a
dispute between an injured party and the purported perpetrator is necessary to get any
government action before the federal courts. Military actions, like the examples cited
above, do not give rise to private disputes that result in justiciable issues so as to
present the courts with an opportunity to decide the constitutionality of these actions.
However, a reasonable conclusion from the decisions of the Supreme Court is that a
treaty may be abrogated in its entirety by statute. This would mean that Congress has the
power to change or abolish any treaty by enacting legislation superseding it.
With American liberties now imperiled in unprecedented ways by the ICC statute and
scores of other UN treaties, it is more important than ever that citizens become educated
and mobilized to compel Congress to use its power to protect our Constitution. An
excellent place to begin would be passage of H.R. 1146, the "American Sovereignty
Restoration Act" — a measure sponsored by Rep. Ron Paul (R-Texas) which would
terminate all U.S. participation in the United Nations. Americans must write their
congressmen to support and co-sponsor the American Sovereignty Restoration Act —
before the treaty trap is sprung and our liberties are but a cherished memory.
Mr. Detweiler, a former assistant attorney general for the state of Idaho, is a
practicing attorney in Twin Falls, Idaho.