Defending "Trouble With Treaties"

By Douglas V. Gibbs

The article I wrote a few days ago titled "Trouble with Treaties" has received a fair amount of criticism from my fellow conservatives. Two emails, in particular, challenged by assertion that treaties are the law of the land just like the Constitution, and regardless of constitutionality.

When studying the Constitution, you have to take the good with the bad. I refuse to bend the Constitution to fit what I want it to say, and neither should you.

Patriot Rodney began his email indicating he thought the title to my article might be connected with a Star Trek episode, "Trouble with Tribbles." That was very astute, Rodney. That is exactly where the title found its inspiration. Like the little fuzz-ball tribbles, in the beginning treaties seem harmless enough. But, as they begin to pile up one realizes that they can actually be a detriment to our free society.

Both Vincent and Rodney, the emailers, echo each other on their criticism of my piece, beginning with, "treaties can't change the Constitution. The Constitution can only be changed by amendment."

Correct.

I never wrote that treaties can change the Constitution. They can't. You assume that is what I meant, but it is not.

Next, my two email friends state that the Constitution of the United States is the supreme law of the land, and all treaties and laws that are pursuant thereof are subject to the Constitution.

Not exactly. That is not what Article VI. says.

Here's the clause: "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."

Let's now break down the language.

The things that are the supreme law of the land are broken down into three groups:

1) This Constitution
2) Laws of the United States which shall be made in pursuance thereof
3) All treaties made, or which shall be made

Each of these things are the supreme law of the land on equal footing.

The first group is very simple to understand. "This Constitution" is the supreme law of the land. Simply stated, and there is no argument.

The second group takes a little thinking. "The laws of the United States which shall be made in pursuance thereof" are the supreme law of the land. "Laws" are laws passed by Congress and signed by the President. "Of the United States" means "of the federal government." So, the beginning of this part of the clause specifically addresses laws made by the federal government, not laws made by States or cities.

"Which shall be made in pursuance thereof" begs us to ask, "In pursuance of what?" The answer is "This Constitution." What this means is that not all federal laws qualify as being the supreme law of the land - only laws made in pursuance of the Constitution are. Unconstitutional laws would then be null and void. However, it is not within the court's authority to decide if a law is unconstitutional. In the end, it is up to us through our States, hence the State ability to "nullify," or ignore, unconstitutional laws.

The final group that is the supreme law of the land is "All treaties made, or which shall be made." Note that in the clause treaties follows a semi-colon, which follows the words, "pursuance thereof." This clause separates treaties from laws, and applies the "pursuance thereof" to laws, but not to treaties. If "pursuance thereof" applied to both laws, and treaties, then the clause would have read, "the laws of the United States, and treaties made, or which shall be made, shall be made in pursuance thereof."

So when that part of the clause begins with the words "all treaties," that is what it means. . . All Treaties.

Why would the Founding Fathers exclude from the clause the part that would have made treaties only legal if they were constitutional?

Understand, I never wrote that treaties can supersede the Constitution, but at the same time treaties ratified are the law of the land, and cannot be superseded by the Constitution, either. They are the supreme law of the land on equal footing. So how is it they can both be the law of the land yet conflict with each other.

The key is that the founders did not expect this to happen because the final arbiters of the Constitution were also the ratifiers of treaties.

The States were the voice of the Senate, but the 17th Amendment changed that, which is what has put us into this predicament of unconstitutional treaties.

The thing is, even if Patriot Rodney and Vincent were right, and the treaties were technically not in force if they weren't constitutional, would the powers in control of the establishment abide by that? They already don't care about what the Constitution says. So, regardless of where you stand on this issue, the fact is the way to protect our republic is to stop these treaties, regardless of the particulars in regards to constitutionality.

-- Political Pistachio Conservative News and Commentary