if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803
On Treaties
by Lee
From Federalist No. 64, written by John Jay.
Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government. [Bold emphasis mine.]
To put this in terms that anyone can understand: Treaties must be treated as the supreme law of the land. When you enter into a treaty you are bound by it. If you wish to change the terms at some point in the future then you may do so, or you can withdraw from the treaty altogether, but what you cannot do is unilaterally ignore it. The reason is simple—if we decide to arbitrarily ignore treaties at will, why would anyone trust us to honor treaties in the future? Who would enter into a treaty with a nation which expected other nations to adhere to the commitment, but then reserves the right to ignore the treaty at will?
Think about that when you consider the ramifications of what has transpired over the past six years. The stain of this administration will haunt us for years to come.
Comments
I understand and completely agree with the idea that treaties can’t simply be changed via legislative action, but I do not believe treaties can violate the constitution. Your example of a treaty being signed and ratified that restricts speech trumping the constitution doesn’t seem to be correct. “Congress shall make no law...abridging the freedom of speech”. It seems to be my ratifying a treaty that restricts speech, Congress is breaking this amendment.
Sorry, chief, but you’re wrong.
Missouri v. Holland, 252 U.S. 416 (1920), the United States Supreme Court 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. The case revolved around the constitutionality of implementing the Migratory Bird Treaty Act of 1918.
…
Previously, Congress had passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. However, several states objected to this theory and successfully sued to have the law declared unconstitutional, on the premise that the United States Constitution gave Congress no enumerated power to regulate migratory bird hunting, and hence the regulation of such hunting, if there was to be any, was the province of the states according to the Tenth Amendment.
Congress, disgruntled with this ruling, then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, and required the Federal Government to enact laws regulating the capturing, killing, or selling of the protected migratory birds [1], an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918. The state of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic.
…
In an opinion by Justice Oliver Wendell Holmes, Jr., the Supreme Court held that the law was in fact constitutional, noting that the treaties clause of the Constitution (Article VI, clause 2), sometimes known as the “supremacy clause,” makes treaties the “supreme law of the land,” co-equal in status to the Constitution itself, a finding that trumps any state concern with regard to the provisions of any treaty, and further implying that treaty provisions were not subject to questioning by the states under the process of judicial review.
Treaties are not subject to constitutional review, thus treaties trump the Constitution.
So, for the purposes of the ongoing discussion, I have clearly shown the following.
1. The US was a signatory to the UN Convention Against Torture.
2. The Bush administration knowingly and intentionally violated that treaty.
3. The treaty specifically requires signatory nations to treat violations of the treaty as criminal action.
4. The treaty makes no distinction between torture for the “right” reasons and torture for the “wrong” reasons.
5. Treaties trump the Constitution.
I am right, Thrill is wrong. Game, set, match.
Now, the example I gave about freedom of the press was, admittedly, an extreme one just to illustrate a point. I think the SCOTUS would take a much harsher view of something like that than migratory bird hunting.
That being said, the law is clear: if you ratify a treaty you are bound to abide by it. It’s the “supremacy clause” of the Constitution.
<standard IANAL weaseling insert>
This is why I love this blog. I was all set to say that Lee was full of crap. But having been schooled here by starting debates before doing my research, I went and did a little research. It appears that Missouri v. Holland is the current defining case on this topic, and its conclusion is that international treaties are at least co-equal with the Constitution, if not superior to it.
(yes, I’m citing a Wikipedia article, but there’s a link off to the ruling itself in the box to the right of the article).
yay for cross-posting :)
George Soros wasn’t born until 1930. I can’t wait to see Thrill’s response.
Missouri v. Holland, 252 U.S. 416 (1920), the United States Supreme Court 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.
I think we’re talking about two different things!
I think we’re talking about two different things!
You need to read the opinion. It makes treaties co-equal with the constitution, which is the explanation of WHY the treaty trumps state law.
Treaties are not subject to constitutional review, thus treaties trump the Constitution.
Not exactly...treaties are the law of the land and co-equal in status to the constitution. Ergo specifically 10th amendment concerns are not relevant. This is not the same thing as signing away fundamental protections for citizens ( like free speech or the right bear arms) in the constitution. 10th amendment concerns have lost out many times over fundamental freedoms guaranteed by the constitution. I.E. a state cant abridge free speech..the first amendment trumps the 10th. In that way the 10th has always been the weakest. So this particular ruling is not a true indication of treaty strength vs. say the 1st amendment.
Also most importantly the SCOTUS at the time took this case. Therefore it was subject to judicial review. Thus treaties do NOT trump the consitution.
I think we’re talking about two different things!
No. Look at the ruling. The government tried to pass a law, which was declared unconstitutional, because they did not have the right to pass it. They then entered into a treaty which did exactly the same thing as the law, and the treaty was upheld. Why? Because while the Constitution did not grant the government the power to enact the law, it specifically grants it the right to enter into treaties. Thus treaties are not subject to constitutional review.
There is nothing in the US Constitution which grants the government the power to abuse, torture, or detain people without trial. There is, however, a treaty which explicitly bans this behavior, and requires that it be treated as a criminal act.
You need to read the opinion. It makes treaties co-equal with the constitution, which is the explanation of WHY the treaty trumps state law.
I fully understand treaties are co-equal with the Constitution. What I’m pointing out is that it is un-Constitutional for the Senate to ratify a treaty (i.e. make a law) that abridges the rights in the constitution. Once a treaty is in force, it certainly is supreme, but if the treaty conflicts with the Constitution, it couldn’t have been constitutionally ratified in the first place!
So this particular ruling is not a true indication of treaty strength vs. say the 1st amendment.
I agree. As I said at the time, it was an extreme example to illustrate a point. It’s a red herring, forget about it.
What I’m pointing out is that it is un-Constitutional for the Senate to ratify a treaty (i.e. make a law) that abridges the rights in the constitution. Once a treaty is in force, it certainly is supreme, but if the treaty conflicts with the Constitution, it couldn’t have been constitutionally ratified in the first place!
OK, I see what you’re after.
This is the heart of the “Reception” paragraph in the Wikipedia article. I’d need to do more research on this, starting from the references cited.
Once a treaty is in force, it certainly is supreme, but if the treaty conflicts with the Constitution, it couldn’t have been constitutionally ratified in the first place!
Again, look at the case.
1. The government passes a law regulating bird hunting. This law is declared unconstitutional.
2. The government uses its treaty power to, in effect, enact the exact same law. This is upheld as constitutional.
If a treaty were subject to constitutional review then the treaty would have been struck down using the exact same reasoning that made the law unconstitutional.
I just did a quick Google and found this page which seems to have a lot of specific information. I haven’t read it all the way through yet, but here’s one good point about Missouri v. Holland.
The Court cautioned, however, that the treaty-implementing power could not be used as an excuse for regulating activities that were not “a proper subject of regulation.”
So the scope of the power to make treaties is limited to areas that are within the purview of regular law-making powers. Note that this doesn’t mean that this is restricted to areas of law making which are constitutional (Missouri v. Holland deals with a law previously declared unconstitutional) only that the treaty covered an area that was reasonably subject to legal regulation.
And with that I’m off to bed.
Lee, the distinction relates to positive and negative powers in the Constitution. The Constitution does not grant the Federal Government authority to regulate migratory birds under US law, but does provide an option via treaties that does not conflict with any part of the constitution.
WRT free speech, the Constitution is explicit in stating that “Congress shall make no law...abridging the freedom of speech”. Therefore Congress cannot ratify a treaty that conflicts with what is explicit in the Constitution.
In other words, if the Constitution said “Congress shall make no law concerning interstate migration of birds” when the treaty was ratified, the ratification would have been unconstitutional.
Here’s another page with even better information.
It appears that there has never been a case of a treaty being declared unconstitutional. However, the court has set a standard of constitutionality in Reid v. Covert.
“There is nothing in this language which intimates that treaties 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. These debates as well as the history that surrounds the adoption of the treaty provision in 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. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.”
So while my “extreme example” was incorrect (it was something I pulled out of my ass for illustrative purposes) it appears that the Torture treaty would meet any standard that the court has thus far set. So my “out of my ass” example was wrong, but I have been right on the actual issue.
WRT free speech, the Constitution is explicit in stating that “Congress shall make no law...abridging the freedom of speech”. Therefore Congress cannot ratify a treaty that conflicts with what is explicit in the Constitution.
I concede that point. As I said at the time, it was an example I pulled out of my ass for illustrative purposes. I was wrong about that, but I’m right about the actual issue we’re discussing, prisoner torture/abuse/imprisonment.
One final point before I go to bed: read the quoted section in the Reid v. Covert decision. Here’s the general thrust.
“You cannot use the treaty making power to enact bullshit laws designed to subvert the intent of the Constitution.”
Does that sound oddly familiar to anyone other than me?
Fuck, I can’t help myself. Here’s one more.
In brief, the fact that all the foreign relations power is vested in the National Government and that no formal restriction is imposed on the treaty-making power in the international context352 leaves little room for the notion of a limited treaty-making power with regard to the reserved rights of the States or in regard to the choice of matters concerning which the Federal Government may treat with other nations; protected individual rights appear to be sheltered by specific constitutional guarantees from the domestic effects of treaties, and the separation of powers at the federal level may require legislative action to give municipal effect to international agreements.
A better example would be a treaty signing the US up to a world criminal court which offers less legal protection than that guaranteed to citizens in the Constitution. That would be against the generally accepted scope of treaty making power and would likely be declared unconstitutional by the court. That being said, there has never been a treaty yet struck down in this manner.
The treaty against torture clearly stipulates that the US will not accept anything less than the protections afforded in the Constitution, nor will it grant to prisoners any rights greater than those afforded in the Constitution. This, therefore, means that it meets the accepted standard.
Nite, all.
This, therefore, means that it meets the accepted standard.
Well yeah, it seems to mean that all the protections for cruel and unusual punishment, and maybe even a guarantee to habeas rights are implicit in the stipulations we negotiated in our signing of the treaty.
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I understand and completely agree with the idea that treaties can’t simply be changed via legislative action, but I do not believe treaties can violate the constitution. Your example of a treaty being signed and ratified that restricts speech trumping the constitution doesn’t seem to be correct. “Congress shall make no law...abridging the freedom of speech”. It seems to be my ratifying a treaty that restricts speech, Congress is breaking this amendment.