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January 20, 2013 at 1:44 am #15060dbledsoe83Member
My friend and I were trying to find evidence that treaties don\’t trump the Constitution. There is the Supremacy Clause and they can only make treaties \”under the authority of the United States\” meaning if they can\’t infringe on your right to bear arms then they couldn\’t make a treaty doing so.
Here is an article my friend put together where all he could find was John Jay in Federalist #64 and relating treaties to the Law of Nations.
If anyone has any comments or suggestions we would appreciate it.
\”Do Treaties Trump The Constitution?
Many people are concerned about many of the treaties that the federal government is debating on entering into at the UN’s behest, things like gun control, water regulation, etc. Many have said that International Treaties that the U.S. enters into “trump” the U.S. Constitution. So, is this the case? Could the founders have been so near sighted as to allow an absolutely corrupt Washington “treaty” away our freedom; to have the states’ sovereignty and its people’s liberties trodden under the by the will of international bodies?
Well, to explain this we first have to give some background to offer a better understanding of what the founders designed during the time of the Constitution’s ratification. During this period, there were two factions that had formed; the Federalists and the Anti-Federalists. The Federalist’s were the ones pushing for the ratification of the Constitution. They assured the people in their writings, The Federalist Papers, that the constitution established a government of limited powers (primarily related to foreign policy and the regulation of interstate commerce), that the states retained all powers not delegated to the new government, and that the federal government could exercise no additional powers without their consent, given in the form of constitutional amendments. The Anti-Federalists’ writings were pointing out areas that the proposed Constitution would allow for the growth of a massive Federal Government that would eclipse the states’ and the people’s rights. In hind sight, I think we can safely say who was right.
In Federalist #64, John Jay explains how treaties will have the force of law:
“Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws…”
He also explains that they will be the supreme law of the land, meaning affecting all states and their people:
“Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land.”
But, he assures that there are safeguards in place by having the power of treaty making split between the Senate and the President, not just the Senate but it had to be two thirds of it. He explains how this separation of power would be the biggest safeguard especially since all the states are represented in the Senate. This was before the 17th amendment, when states appointed people to send to Washington to sit in the Senate, in this way the state was free to pull them back and replace them should the states’ interests not be represented properly at the national level.
The federalists felt that this was a good enough separation of powers and Jay could not fathom a federal government that would ever pass things that would not be in the country’s best interest for he writes:
“As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained.
However, there must have been those who had expressed doubt that this separation was a good enough safeguard because John Jay continues:
But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.”
Now, many might be left scratching their head at the mention of the law of nations. It is important to understand what is and is not included in the term \”law of nations\”, and not confuse it with \”international law\”. They are not the same thing. The phrase \”law of nations\” is a direct translation of the Latin jus gentium, which means the underlying principles of right and justice among nations, and during the founding era was not considered the same as the \”laws\”, that is, the body of treaties and conventions between nations, the jus inter gentes, which, combined with jus gentium, comprise the field of \”international law\”. The distinction goes back to ancient Roman Law.
Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone\’s Commentaries, and prosecution of those who might violate them:
1. No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.
2. Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.
3. Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.
4. Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.
5. Care and decent treatment of prisoners of war.
6. Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.
7. Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one\’s territory or are found on the high seas.
And, although it was not yet firmly established with all nations in 1788,
8. Prohibition of enslavement of foreign nationals and international trading in slaves.
No subsequent additions to the \”law of nations\” could have the effect of expanding the delegated powers under the Constitution. Ratification froze those powers at the moment of ratification. Only the amendment procedures provided under the Constitution can add to, subtract from, or modify them and thus make them binding upon the states’ and its people. So, treaties cannot “trump” the Constitution, as many people claim, unless they are put in place as a Constitutional Amendment.
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