THE STEALTH ATTACK ON AMERICAN FREEDOM
The Treaty Clause is – The American Trojan Horse
The greatest current threat to our cherished constitutionally protected freedoms is the stealth erosion of the very protective framework that has worked to protect them during the hard times. We tend to rally whenever there is a clear frontal assault, but we are very slow to respond when the threat is cloaked, and the approach is gradual. This article deals with one such assault pathway, the Treaty Clause of the US constitution.
When the US constitution was drafted, America’s founders were thinking of trade treaties and military alliances. They provided that a ratified treaty could not easily be undone, putting the policy in Article Six of the Constitution (antedating the adoption of the Bill of rights). Ratified treaties would 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.”
No one leader in that dawn-time of the American republic seriously considered that an international treaty regime could even exist, much less seek the power to control essential aspects of American domestic life. But times have changed. We need to wake up and smell the threat.
The internationalists among us dream of the day when all national sovereignty has gradually been absorbed into a web of international agreements. …And the US Constitution is an obstacle to their agenda.
e were given a sacred trust: the US constitution and its Bill of Rights and a durable system of checks and balances. This is what is meant by American exceptionalism. This legacy is ours to keep, but only if we remained informed, diligent and fierce in its defense, because it is also ours to lose.
Q: HOW COULD WE EVER LOSE OUR CONSTITUTIONALLY PROTECTED FREEDOMS?
A: By losing a war…or by signing and ratifying the wrong treaty without losing a war.
The treaty clause of Article Six of the US constitution poses a constitutional threat to the rest of the constitution because of its ambiguity. It was designed in an era when there were no international regimes-in-the-making that were seeking the power to consolidate control over the sovereign states (in the name of peace) by getting them to surrender sovereignty bit by bit, for “the greater good.”
If a ratified treaty can run roughshod over all state laws in a way that the federal government cannot do (because the federal power is restrained by the 9th and 10th amendments of the federal constitution), what is to prevent a ratified treaty from effectively overriding some other provision of the US constitution as well? …Nothing at all in my opinion.
Some of the jurists who proclaim that our constitution is “a living document” really mean that its provisions are so plastic that they can be “reinterpreted” to accommodate “new conditions” and “the general welfare.” This means as a practical matter that any given moment we may be only one Senate or Supreme Court vote away from losing the Bill of Rights. The founders never contemplated treaties in which a sovereign power like the USA would be tying itself to international control regimes. Failing to anticipate that modern circumstance, the founders failed to provide a constitutional failsafe, even one the effect that a treaty is the law of the land but is always subordinate to the bill of rights as they apply to US citizens.
When a sovereign loses a war for example, no one doubts that a surrender treaty could give it all away. It seems that the progressive left is engaged in achieving U.S. surrender by stages…all for the greater good.
I first researched the treaty problem back in January, 2007. I had been invited to sit on a Moot Court panel as a “Supreme Court” Justice (at Boalt Hall, my former law school). I found myself dealing with a with a constitutional law case that prefigures some chilling legal scenarios. Among my fellow judges was an old acquaintance, Federal Judge D. Lowell Jensen, former County DA. [Judge Jensen was President Reagan’s head of the Justice Department’s Criminal Division.] I’ll skip the specific Moot Court problem we addressed, but my study of the treaty power issue was a wakeup call for me. Here are one of my takeaway lessons:
Q: Could the Treaty Clause of the US Constitution be used to override inconsistent constitutional provisions, even the Bill of Rights?
Q: Why have the legal minds in the last administrations so steadfastly resisted having the US join the International Criminal court (ICC).
A: Because they’re not crazy. Under that treaty, the so called Rome Statute, the International Court has the power to subject U.S. citizens to trials without the constitutional protections we enjoy, like a jury trial, and imposes severe penalties for crimes that no U.S. legislative body has ever enacted. Note an irony: Both Russia and China have agreed to the treaty.
So far, the US Senate has never ratified it.
President Clinton signed the Rome Statute treaty in 2000. The second Bush administration refused to join the ICC and sent a note to the UN in 2002, revoking Clinton’s signature and declaring that US recognizes no obligation toward the Rome Statute or to the ICC.
President Obama has reversed Bush’s position.
Q: How Many Votes does it take to override – or even repeal the Bill of Rights?
A: Only 73, consisting in the “vote” of the president, that of 67 senators and 5 Supreme Court members.
“[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”. (U. S. Constitution Article II Section 2.)
A treaty is ratified by the US Senate by a two third’s majority. So the is 72 (67 plus 5) and one for POTUS.
It is axiomatic that the Constitution means what five members of the Supreme Court say it means. The language of Article Two, Section Two of the Constitution, based on textual analysis alone, can be construed such that a treaty enforced by the president and congress, could give effect to a draconian scheme of domestic regulations by an international commission. The conflicting provisions of the rest of “the Constitution” would simply be overridden. If you doubt this is a possibility, check out the straightforward language of Article Six of the U S Constitution:
“[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”.
(U. S. Constitution Article Six)
The textual interpretation of the internationalists who want to bypass the US Bill of Rights “obstacle:” is very straightforward. If the original text had said “the Constitution(s) or Laws of any State”, a reviewing court might reasonably conclude that a treaty and enabling legislation would only override the various state constitutions. But the Article Six refers to “the Constitution” (in the singular), creating a pregnant ambiguity.
I have any doubt whatsoever that a future Supreme Court (especially one in which one or two of the current conservatives are replaced with more internationalist ones and the decision is made under great political pressure) might go the wrong way. It does not boggle this lawyer’s mind to envision a slightly reconfigured SCOTUS, five members of which are willing resolve the ambiguity in favor of an expansive reading of the treaty power: I can readily imagine the ruling that conflicting provisions in the U. S. Constitution must give way to effectuate the ratified treaty’s implementation.
The process of freedom’s erosion begins in small increments. There are a number of plausible scenarios involving the Treaty Clause.
For example, I can imagine the case of Max, an ex-patriot German publisher living here on a visa. Max is prosecuted for running holocaust denial pieces in Europe. So this ex-pat German national relocates to the US, relying on the US First Amendment cases for insulation. He publishes the forbidden books in Brooklyn intending to export them to Europe and the Middle East. Assume the US has ratified a treaty with several European countries (including Germany) that provides for the co-prosecution and reciprocal extradition of all persons within their territory for listed “hate” crimes, including holocaust denial. Assume the congress has passed implementing legislation.
In this hypothetical, Max could easily extradited, the New York Times vs. Sullivan case notwithstanding. [In the New York Times v. Sullivan 376 U.S. 254 (1964), the Supreme Court gave strong First Amendment protection for publishers who print otherwise false and defamatory material.]
In another example, I can imagine a climate control treaty that bypasses the Congress and imposing crippling restrictions on US energy production, manufacture and even personal conduct, no matter what limits are present in the US constitution.
Once the High Court takes the step of allowing a ratified treaty to override any part of the constitution– even by implication, a precedent will have been established. This will opens the door wide for various lower federal courts (think Ninth Circuit here) to take further bold steps in the same direction.
The recent proposed “gun treaty” would have overridden federal and state laws in much the same way.
From this or any similar “small” case, it is easy to imagine how more and more power can be transferred from the Congress and the executive to an international body whose power derives from Article Six, “All Treaties … shall be the supreme law of the land.”
When I reviewed the federal cases on point, I was surprised and dismayed to discover that there is no contrary authority, no single case that would get in the way of the kind of power grab I’ve just described.
For example, my survey of the major Supreme Court decisions over the last 89 years demonstrates that the foreign policy powers of the President can override contrary state laws, especially when he (or she) makes an “executive agreement” with another sovereign (even without a ratified treaty).
Local laws affecting insurance proceeds relating to the holocaust and compensation for assets seized by the Soviets were overridden based solely on the foreign policy powers of Clinton and FDR. When a signed treaty and Congressional implementation are added to the mix, we get an enhancement of federal power: “The President and the Senate may enact law through treaties that the President and Congress could not do through ordinary legislation.” See the migratory bird case, Missouri v. Holland, 252 U.S. 416 (1920).
Note that in a number of cases conservative libertarians are seeking to restrain the government’s over-expansive use of the Commerce Clause to justify regulations of individual private behavior. A treaty can easily overcome any limitations in the Commerce Clause authority.
In a different case, military wives fared better than the migratory birds. Executive agreements between the US president and foreign powers were held not to subject civilian family members of military personnel to military tribunals (here the wives were being court-marshaled for allegedly killing their husbands). SCOTUS held that the wives retained the Sixth Amendment’s protections while living in US military bases in Britain and Japan. See United States v. Belmont, 301 U.S. 324 (1937) But note the difference: There was not a ratified treaty in the wives’ case that placed them outside the US constitution. Had there been one authorizing the prosecution of civilian military personnel in military courts (or even foreign courts), the constitutional rights of those American civilians could well have been forfeit.
None of the Supreme Court cases that have limited the President’s foreign policy powers because they interfere with protected domestic rights have involved a ratified treaty and implementing congressional legislation. The Supreme Court has not established any clear bulwark against a treaty that conflicts with constitutional provisions.
There is a dangerously growing probability that a future court will actually hold that some provision of the U.S. constitution gives way when it conflicts with a contrary provision of a ratified, implemented Treaty.
We now have a president who was apparently willing to exploit the treaty power to contravene the second amendment’s “impediments” to large scale gun confiscation in the USA. This was a blatant attempt to bypass the states and the House of Representatives by exploiting the treaty power.
The misuse of the treaty power is a clear and present danger to our cherished liberties and freedoms.
We are on a slippery slope and it seems that our president is just fine with that. For these and a host of other reasons, it is imperative that the US Senate not remain in the control of progressive internationalists – of compliant party members when we have a progressive internationalist president. We do not have the time or the political will to amend Article Six, inserting a freedom firewall, so we are tasked to fight this battle over and over again. As Jefferson said, “What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance?”
Jay B. Gaskill
First published on The Policy Think Site and linked Blogs. Copyright © 2013 by Jay B Gaskill, Attorney at Law
Author contact for all purposes: firstname.lastname@example.org .