57Coastie wrote:Kythas wrote:Medic624 wrote:
Let me see if I have a decent understanding of this process... meaning that, when this is signed on the 27th it must then be ratified by the Senate... Okay, so if it DOES get ratified it is then signed off and deemed on par with our constitutional amendments ie... Negating the 2nd amendment depending on the interpretation of the wording within the treaty as understood by whom?
No. Treaties have the force of law on par with laws Congress passes, not on par with Constitutional Amendments. A treaty obligation can still be found unconstitutional and be voided. The Supreme Court has found numerous treaties to be in violation of the Constitution over the years and have declared them void.
“The treaty is ... a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853).
“It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).
I must challenge your research, Kythas. It has been noted time and again that the Suprme Court cases you cite
do not stand for the proposition you advance. We must keep in mind that at times members of the Court
say one thing, and they
decide something else. It is what they
decide that counts. When they willy-nilly make a statement about a hypothetical case, that statement is not law. It is
obiter dictum, a pronouncement not amounting to a holding of law.
I think you may owe us a citation for what it is you have written as if the language were your own.
Without seeing that citation I will challenge you to demonstrate to me,
in your own words, where in those five cases you cite the Supreme Court majority opinion held that a properly ratified and enacted self-executing treaty is other than on the same level as our Constitution as supreme law of the land. I would suggest to you that each of the cases you have cited either make declarations of
obiter dictum not necessary to the decision of the case, or, on the other hand, deal with the question of the validity of state action contrary to the provisions of a treaty, not actions of the federal government, by either the congress or the administration.
You have taken on complex legal matters here, Kythas, and you must be prepared to demonstrate the correctness of your legal research, or refer us to what it was you copied in a very unscholarly manner by omitting any credits. The omission of credits generally implies one of two things, (1) that it is your original work, or (2) perhaps plagiarism. Those 19th century cases cited did not address an issue concerning conflict between action by the United States causing conflict between the Constitution and its treaty making power, nor did
Asakura frame such an issue.
If you choose to play with the big boys, be prepared for a hard match.
Nuff said. Let me refer you to my earlier post on the first page of this thread where I attempted to, as best I could, answer Dave2's question about the supreme law of the land, and I concluded, on the basis of my research and lifetime experience, I really did not know the answer for sure. I see no need to go through that again.
Perhaps a scholarly analysis of the cases you cite will satisfy me, Dave2, and all the judges and lawyers in our great land who admit that right now they do not know for sure would be obliged to you.
Jim
Jim,
The paragraph I wrote, excepting the quotes in which the proper case citations were listed, were my own words. No citation was needed. If you need citation, I will refer you to those cases which I did, in fact, cite.
I stand by the statement that treaties do NOT supercede the Constitution. The idea that they do comes from John Foster Dulles, Eisenhower's Secretary of State. Dulles believed as follows: "Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can over-ride the Constitution. Treaties, for example, can take powers away from Congress and give them to the President; they can take powers from the state and give them to the federal government or to some international body, and they can cut across the rights given the people by the constitutional Bill of Rights."
Dulles was incorrect in this belief, but this idea has taken hold since then.
Here's another Supreme Court case citation for you which should put this to rest once and for all, as it DOES deal with "an issue concerning conflict between action by the United States causing conflict between the Constitution and its treaty making power": Reid v. Covert, October 1956, 354 U.S. 1.
This case raised the question of whether NATO status of forces agreements, which are treaties, supercede the US Constitution.
The Supreme Court in this case said this: "This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty."
The majority opinion in that case further stated:
"... No agreement with a foreign nation can confer power on the Congress, or any other branch of government, which is free from the restraints of the Constitution. Article VI, the Supremacy clause of the Constitution declares, "This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all the Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land...’
"There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution nor is there anything in the debates which accompanied the drafting and ratification which even suggest such a result...
"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. (See: Elliot’s Debates 1836 ed. – pgs 500-519).
"In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and Senate combined."
In this opinion, the Court restated language from an earlier case, Geofroy v. Riggs, 133 U.S. 258:
"The treaty power as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government, or a change in the character of the States, or a cession of any portion of the territory of the latter without its consent."
The Court then continued in its opinion (emphasis mine):
"This Court has also repeatedly taken the position that an Act of Congress, which MUST comply with the Constitution, is on full parity with a treaty, the statute to the extent of conflict, renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument."
If you still need further persuading, I refer you to the words of our Founding Fathers themselves:
"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction [interpretation]. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution." - Thomas Jefferson
"Compacts then, between a nation and a nation, are obligatory on them as by the same moral law which obliges individuals to observe their compacts. There are circumstances, however, which sometimes excuse the non-performance of contracts between man and man; so are there also between nation and nation. When performance, for instance, becomes impossible, non-performance is not immoral; so if performance becomes self-destructive to the party, the law of self-preservation overrules the law of obligation in others". - Thomas Jefferson
"I do not conceive that power is given to the President and Senate to dismember the empire, or to 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 its delegation...Here, the supremacy of a treaty is contrasted with the supremacy of the laws of the states. It cannot be otherwise supreme.” - James Madison
"A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution..." - Alexander Hamilton
Here's part of a letter written by Sen. Arlen Specter to one of his constituents, who has put it online, said letter dated Nov 3, 1994:
"Dear Mr. Neely:
"Thank you for contacting my office regarding the United Nations Convention on the Rights of the Child. ... I have signed on as a cosponsor of Senator Bradley’s resolution [SR 70, which urges the president to seek the advice and consent of the Senate for ratification] because I believe that the U.N. Convention on the Rights of the Child is an appropriate step in the direction of promoting the well-being of children throughout the world. [he goes on to mention concerns that the treaty would subjugate familial and parental responsibility to an international entity, which he denies]
"... Secondly, the Convention would not override the U.S. Constitution; rather, as in the case of any treaty, any provision that conflicts with our Constitution would be void in our country... "
If you require further reading on this, then perhaps this document from the Stanford School of Law will help:
http://www.jstor.org/discover/10.2307/1 ... 6296248563
The fact is, a treaty can NOT override the Constitution. The Supreme Court has ruled on this issue multiple times. Powers granted by the Constitution can not realistically be construed to grant powers to override it.