The United States is unique in how it holds laws and the weight it gives treaties it ascribes to. As a result, the US needs to be very diligent in what treaties it does sign. Other nations are not under the same restrictions that the US is under with regard to treaties. In other nations treaties are of no more significance to the population than we are resolutions of Congress.
The reason for this is spelled out in Article VI of the Constitution, and is something that most citizens and members of Congress have not a clue about. Specifically, Article VI states -
“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“.(1)
That means, in lay speak, that any and all treaties that the United States ratifies or otherwise joins have the same weight as the Constitution and laws passed by Congress.
The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.”5(2)
The Constitution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and constitution. Their obligation “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’.”18 State courts are bound then to give effect to federal law(3) when it is applicable and to disregard state law when there is a conflict; federal law includes, of course, not only the Constitution and congressional enactments and treaties but as well the interpretations of their meanings by the United States Supreme Court.(2)
… the Supreme Court had held, prior to Marshall’s appointment to the Bench, 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…(1)
This analysis of Article VI states that where a conflict exists between a treaty and federal law or state law, the treaty is the final authority. As such, the treaty supersedes any law then in place or enacted in the future if it is in conflict with the treaty.
Analysis from Curtis W. Craine(4) suggest that -
A treaty may not do or exceed what the Congress is charged to do or what it is forbidden to do. Constitutional authority supersedes, overrules, and precludes any contrary treaty authority.
Thus, if a proposed treaty would violate any provision of the Constitution, it may not even be seriously considered or debated, much less be ratified and implemented because the same restrictions that were placed by the Constitution on the U.S. Federal government are also imposed on any treaty provision.
Treaty embroilment is so dangerous and so important, that to further limit and restrict their making, Article II, Section 2, Paragraph 2 orders that the President: “…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; [Emphasis added.]“
Further, Article VI, paragraph 2 quoted above commands that if and when all of the above requirements for a treaty are met — that is, a) it does not contradict the Constitution; b) it is negotiated by the President who has sworn to not violate, and who in fact is not violating the Constitution; and c) it is ratified by two thirds of the State-defending-Senators who have sworn to not violate, and who do not by their vote violate the Constitution — then, and only then, may the treaty in question go into full force and effect for the Union and for all of the individual States in the Union.
So, the Judges in each State must obey a bona fide treaty, even if the treaty is contrary to that state’s Constitution or contrary to any law of that state.
Thus, a properly/legally concluded U.S. treaty overrules any STATE law and any STATE Constitution, but a properly/legally framed U.S. treaty does not, may not, can not, and is forbidden to overrule the U.S. Constitution or abrogate the Sovereignty of the United States. If it does, it is not bona fide. It is a usurpation. It is not “under the Authority of the United States” to make such a treaty.
Ergo, treaties (“made, or which shall be made”) that violate the U.S. Constitution by subjugating the United States to an outside power ARE PROHIBITED, of no effect, and thus, null and void.
I did not mean to quote so much from the referenced site, but I felt it important to show. While Craine states that it would be illegal to ratify a treaty that usurps the authority of the Constitution, there is precious little, in reality, to be done to prevent it. We are simply hoping that our Senators read the treaty and understand its implications before ratifying it. Should an illegal treaty be ratified, like an illegal(5) law, what is to be done to have it removed and how many people will suffer as a result?
My point in this is two fold, while I believe it to be illegal to ratify a treaty that usurps the authority of the Constitution, I do believe that it is not impossible to do. By signing on to treaties, we are obligated to uphold them until it is shown that it was illegal in the first place.
Start Footnotes
- Emphasis added by me. [↩][↩]
- Source of Supremacy Clause analysis here. [↩][↩]
- Including Treaties. [↩]
- Source for Caine’s quotes here. All emphasis is the authors. [↩]
- Read Unconstitutional. [↩]
End Footnotes.
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