I came across this World Net Daily this article on a Belgium family being accused of criminal negligence because they home school their children. Apparently Belgium signed the United Nations Convention on the Rights of the Child, and it is being used to threaten this family with criminal charges. The article also points out that the treaty was signed by the Clinton Administration, but never ratified by the Senate; therefore it has no legal power in this country. But if it had been ratified it would supersede the Constitution.

My initial reaction was probably the same as yours - “that’s crazy! The Constitution is the supreme law!”. But I also did some research, starting with the Constitution itself.

Article VI, Clause 2 is the section referred to by people concerned about the power of 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 Constitution is easy to read and this clause is as clear as any other — treaties, Laws and the Constitution are equals and all the States are bound by them. This doesn’t sound good.

Article II, Section 2, Clause 2, powers of the Presidency, has this reference to Treaties and the power of the President:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

Again, this is clear. Treaties are made by the President and 2/3 of the Senators present, which is also disturbing. If only 9 show up it only takes 6 to pass a treaty.

Article III, Section 1, Clause 2, which covers the power of the Supreme Court, reads in part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

This clause appears to give the Supreme Court the power to overturn treaties, which would make sense if they are on an equal standing with Laws.

What the Constitution doesn’t tell us is why it was written like this. For that we turn to the Federalist Papers, published anonymously in 1788, they were written by Alexander Hamilton, John Jay, and James Madison. The essays addressed many of the concerns over the proposed Constitution in order to persuade people to support ratification. The subject of treaties is covered in several of the essays.

John Jay, in Federalist 64, addresses the concerns directly:

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.

This perspective makes sense to me. If treaties were not the supreme law of the land how would we ever convince another country to sign a treaty with us? They have to be on equal footing with the other laws.

There is another interesting section of Federalist 64, discussing the Senators who need to approve the treaty by a 2/3 vote that is very relevant to this discussion:

The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.

As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.

Remember that the 17th amendment changed the method of selecting Senators. They are no longer chosen by the state legaslators, but by popular vote “…where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.” This would appear to me to be the biggest concern regarding treaties — previous to 1913 Senators were chosen by the State Legislators and were less susceptible to the current political whims of their parties.

Alexander Hamilton, in Federalist 75, also addresses the question of treaties extensively. He doesn’t address the need for treaties, but the methods implemented by the constitution.

So, after reading all of that I really don’t have a problem with treaties, as they are laid out in the Constitution. What I do have a problem with is the fact that Treaties with the UN really are not treaties with another nation as would have been the norm during the time of the Founding fathers. These days it seems like Treaties are a way for anti-American groups to try to impose a ‘World Government’ on our population. This emphasizes why elections are important, if you elect the wrong Senators we may end up with one of these slipping through. Although from my reading of the Constitution it appears that the Supreme Court could declare it invalid.

[tags]treaties, constitution, liberty[/tags]