Are Treaties the Supreme Law of the Land?
Let's listen in on a conversation:
If the Senate approves that U.N. treaty, I’ll lose my gun rights!
If the Senate approves the other U.N. treaty, I won’t be able to raise my kids the way I should!
Yes, you will.
But the Constitution says a treaty becomes the supreme law of the country!
Yes, but …
Everyone says that’s what would happen, and I’m worried. With this President …
This President and Senate, already in open violation of their Constitutional obligations, could do massive damage to the traditions, laws, and freedoms of this country.
Right. That’s right! So why shouldn’t I be worried?
We seem to believe that the Senate, with the President's signature, can indeed adopt any foolishness proposed as a treaty by the UN or any another country and thereby accomplish whatever they want, regardless of Constitutional limits or the will of the people.
Is that what the founders intended? Is that what the Constitution says? That such an action would become the supreme law of the land, and as such override the Constitution, all federal and state laws, and all legal precedent since the country began?
No, thank goodness, that's not what it means.
Take another look at the supremacy clause in Article VI of the Constitution, and how it relates to laws and treaties:
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 first phrase establishes that the Constitution and laws written “in Pursuance thereof” by the new federal government – the “United States” – will be “the supreme Law of the Land.”
Consider that phrase, “in Pursuance thereof.” Are all laws created by the federal government done in pursuance of the Constitution? Apparently not. What shall be said of those that are not, those that are in clear violation of the Constitution?
The Tenth Amendment emphasizes that all powers not delegated to the new federal government “are reserved to the States respectively, or to the people.” When the federal government takes unauthorized actions, it is trespassing on the authority reserved to the states and the people, and those actions do not rise to the level of law.
But is this reading too much into the word “Pursuant”? Doesn't it just mean anything they choose to do as they go about governing the country?
Alexander Hamilton offered these assurances in Federalist No. 33 to those fearing exactly this misuse of the supremacy clause:
But it will not follow … that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. … It will not, I presume, have escaped observation, that [the clause] EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
So Mr. Hamilton, one of the three authors of the Federalist Papers, declares that any action taken in violation of the specific terms of the Constitution is not “pursuant,” and in fact needs to be treated as an invasion into the states' authority and an act of usurpation. It is so obvious to him that he apologizes for even mentioning it.
To those who wrote the Constitution, “in Pursuance thereof” meant actions that are clearly within the assigned responsibilities given to the federal government, and nothing more.
Moving to the next phrase in Article VI we find a similar constraint being expressed regarding treaties: “all Treaties made, or which shall be made, under the Authority of the United States…”
So apparently treaties can be made that are not “under the Authority of the United States.” Obviously this would include treaties that we have not signed, but it must also include treaties that the federal government does not have the authority to sign – treaties not signed “pursuant to” the Constitution, treaties dealing with areas that are not in fact under their authority.
For example, a treaty might arise that affects an area of society or American life that the federal government is specifically forbidden from addressing. If the UN proposed a treaty governing the manufacture, sale, or ownership of firearms – just to choose something completely at random, very unlikely to ever happen – the federal government would not be permitted to sign that treaty, because the Second Amendment specifically forbids the federal government from taking any such action. If the Senate and President were to approve such, it would still have no legal effect and should be ignored by the states and the citizens.
Thomas Jefferson explained it this way in the Kentucky Resolutions of 1798:
…whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force…
In the Virginia Resolution of 1798, James Madison, the “father of the Constitution,” declared that:
…in case of a deliberate, palpable, and dangerous exercise of other powers, not granted [by the Constitution to the federal government], the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil…
But if they sign such a treaty and the enforcers come, will your state “interpose” on your behalf? Will your county Sheriff even know that he has a role to play, and that his oath of office requires him to stand between you and this “exercise of other powers” never given to the federal government?
The Rights of the Child
What if they approve a treaty affecting how you raise your child? Many have trumpeted the dangers of the U.N. Convention on the Rights of the Child, and warn of its potential impact on your ability to raise your own children.
The Tenth Amendment is as strong as the Second. You will search in vain for the Constitutional phrase that conveys authority to Congress, much less to an external body like the U.N., to have anything to say about your parenting methods. In America that responsibility is part of the vast body of rights that are “reserved to the States respectively, or to the people.”
But should the government ever sign such a treaty, and the federal agents (or state agents working at their direction) come to your door, the crucial question will again be whether your local law enforcement is prepared to deal with it appropriately and defend you.
What if it gets into the courts and the Supreme Court approves it? Doesn't the Supreme Court get to decide what's “Constitutional”? When the Supreme Court decides something, don't we all have to obey?
Not according to the founders, the men who wrote the rules. Congress and the states have at least as much right to decide the matter.
As James Madison told Congress on June 18, 1789, “Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.” In other words, “Congress, you have just as much right to decide what is Constitutional as the courts do!”
And Alexander Hamilton wrote in Federalist 81 that nothing in the proposed Constitution “directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”
In fact, the states have more authority than the federal courts, since the states formed the federal government, not the other way around.
This may be a surprise, since it contradicts your entire life's experience, but the nine unelected friends of the President who sit on the Supreme Court cannot rewrite the Constitution any more than you can. Neither can the Senate and the President by simply signing a treaty.
Unless we let them.