Trouble With Treaties

By Douglas V. Gibbs

The second clause of Article VI. of the United States Constitution reads: 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.


The Obama administration is poised to sign a number of draconian treaties offered by the international leftists of the United Nations. There is a concern because of the unconstitutional nature of these treaties. The treaties, of which the globalists are claiming are loaded with good intentions, would enable international regulations over parenting, sea routes, our foreign policy, arms trade, water and energy usage, and even global governance over the use of land within the sovereign states.

Treaties can be dangerous, because as per Article VI. of the United States Constitution, like laws made in pursuance of the Constitution, ratified treaties are the supreme law of the land.

The United States Supreme Court in the Reid v. Covert case of 1957 ruled that despite the fact the Constitution calls ratified treaties the law of the land, the Constitution supersedes international treaties ratified by the United States Senate. The opinion of the court was inspired by the concept of Judicial Review, which enables the courts to "interpret" the Constitution to mean whatever they desire. The ruling, however, was not a way to protect us from bad treaties, as the supporters of the decision claimed, but was yet another nail in the coffin by the federal government in their attempt to kill the voice of the sovereign States once and for all.  According to the Supreme Court, when it comes to determining the Constitutionality of a treaty, that task would fall upon the courts - a protocol that carries with it very dangerous implications should the executive branch and the judicial branch collude together for the purpose of usurping the Constitution.

Judicial Review, a concept canonized by the Supreme Court Chief Justice John Marshall in the 1803 Marbury v. Madison case, was an authority never actually expressly granted to the courts by the States, and in reality is an unconstitutional concept in the first place. Therefore, if the courts are not the final arbiters of the Constitution, and Judicial Review is simply a power grab by the courts that was not embraced by any of the Founding Fathers except maybe the statists like Alexander Hamilton, then it is clear the courts have no say over whether or not a treaty is Constitutional or not.

When breaking down the language of Article VI. one finds that treaties are not required to be Constitutional. The wording of the clause only requires that the laws passed by Congress be in pursuance of the Constitution. However, the clause also places treaties on the same level as constitutional laws passed, as well as the Constitution itself. This brings up the question, if a treaty conflicts with the Constitution, which of the two supersedes the other?

There is no clear answer to that question because the Founding Fathers did not expect it to be an issue.

To understand why the founders were not concerned with the constitutionality of treaties, we need to go back to the world of early America itself.

The American system has changed drastically since the founding of this nation. The very dynamics of our political system are so out of whack that problems are arising that were never a concern before.

During the Constitutional Convention the delegates represented the States, and in order to be ratified the States, which is the voice of the people through their local autonomous entity, had to approve of the Constitution with nine out of the thirteen States. The reason for this is because it was the States that were granting authorities to the federal government. The States held original authority over all powers, and had to relinquish some of those powers to the federal government in order for the new central government to function as they desired. The delegates, however, did not trust a central government, and so the States were tasked with serving as the final check and balance against all federal actions. In order to change the Constitution, three-fourths of the States are required to ratify it. The States were given the same power over all other workings of the federal government, through the United States Senate.

Before 1913 and the ratification of the 17th Amendment, the U.S. Senators were appointed by the State legislatures. This was so that the States could advise the federal government, and give consent to federal actions. The advise and consent power was specifically given to the Senate because the Senate served as the voice of the States in the U.S. Government.  This means that it was the responsibility of representatives of the States to hear all impeachments, hear all federal appointments, and to ratify treaties.

The States, because they made the contract that formed the federal government, and because it was some of their powers being vested in the new federal government, were (and are) the final arbiters of the Constitution. That is the reason the States have the power of nullification. If the federal government passes laws outside the authorities of the Constitution, the States have the option to nullify those laws by refusing to implement them.

Since the States are the final arbiters of the Constitution, and it was the voice of the States through the U.S. Senate that was tasked with the ratification of treaties, there was no concern that treaties would be made that were in conflict with the Constitution, or that were dangerous to the concept of State sovereignty. Surely, the founders reasoned, the States would not ratify treaties that would place in jeopardy their own rights, or the important principles of limited government that were in place to protect the States from a tyrannical federal system. And even if some States were willing to instruct their appointed representatives in the Senate to vote in favor of a draconian treaty, there would never be enough because ratification of a treaty takes two-thirds of the Senators present.

Our Founding Fathers were not worried about unconstitutional treaties because the ultimate guardians of the Constitution, the States, were the ones required to ratify a treaty through the United States Senate.

Though the treaties we are faced with are insidious, the real problem is not the treaties, but the fact that we have opened the door for their ratification by continuing to allow the 17th Amendment to remain in force. Returning the U.S. Senate to the States is the way to stop this madness, for even the most liberal States are not always interested in giving up their own interests and rights to an international totalitarian regime like the United Nations.

-- Political Pistachio Conservative News and Commentary