Constitutional Originalists and Textualists beware:
Could the treaty with the World Trade Organization or proposed one with the International Criminal Court overrule American Law?
If the Constitution means anything to originalists and textualists, then treaties have the same effect as a Constitutional amendment:
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, anything in the Constitution or laws of any State to the contrary notwithstanding.
Article VI selection from the US Constitution.
Laws have to be pursuant to the Constitution, but all treaties are equal to the Constitution, based on the plain words of the Constitution.
We are not required to make treaties, but if we do, they have the same effect as the Constitution itself. I think the interesting question would be if we could overturn Roe v. Wade by making a treaty with the Vatican. Or a treaty on Gay Marriage with Canada...
It would be a lot easier than passing a Constitutional amendment.
posted by Jrudkis @ 10:38 PM
5 comments
5 Comments:
Similiar concerns led many in the 1950s to want to amend the Constitution with the "Bricker Amendment," which would have specified that no treaty or executive agreement with a foreign nation would supercede the Constitution itself. One radical version would have required acceptance of all the states before treaty or executive agreement would have been confirmed.
The need for this amendment was somewhat questionable given the contemporaneous opinion of Reid v. Covert, which held an executive agreement could not overrule the rights of a jury trial. On this very pt, it noted:
"There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [354 U.S. 1, 17] War, would remain in effect. 31 It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. 32 In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined."
That might answer the originalist concern.
Thanks for the comment and answer. I think it is interesting that there can be an issue where it seems the only possible solution to correct it is to go through the process of amending the Constitution, or five of nine old lawyers can just decide the issue and then it would take an amendment to override that decision.
I just find it hard to believe that putting that much power in the hands of so few was the original intent, either.
I suppose one could make that argument, but it seems a strained reading of the Supremacy 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; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Two points that I think your suggested reading overlooks:
(1) The Supremacy Clause includes three categories of items which are entitled "supreme law of the land" -- "This Constitution"; "laws... made in pursuance thereof"; and "treaties made... under the authority of the United States." Obviously, laws of the U.S. are not co-equivalent with the Constitution, even though listed as "supreme law of the land". Therefore, there is no textual reason to think that treaties are co-equivalent with the Constitution simply by being categorized as "supreme law of the land."
(2) The Supremacy Clause is about overriding state laws and constitutions, not the federal Constitution. You'll notice I highlighted the word "this" at the beginning of "this Constitution." Compare that with the recitation below -- "anything in the Constitution or laws of any state to the contrary notwithstanding." In a vacuum, that phrase is ambiguous -- it could mean either (a) "the federal Constitution or any state law" or it could mean (b) "the various constitutions and laws of the states." But you'll notice that when the Clause earlier refers to the federal Constitution, it refers to "this Constitution." This shows that when the phrase "the Constutition or laws..." is used it refers to other Constitutions -- i.e. those of the states. In other words, the earlier use of "this Constitution" in the Clause shows that meaning (b) is correct -- it overrides state laws and state constitutions.
I think it makes more sense to argue that the qualifier "under the authority of the United States" has the same effect as the phrase "made in pursuance thereof" which limits laws to the confines of the Constitution. I think the argument would be that treaties can not be made that violate the Constitution because that would be outside the authority of the United States.
However, I think it is kind of circular since the phrase granting treaties supremacy is also in the Constitution, and the right to make treaties is granted to the executive in the Constitution with consent. So that is the authority, and it is a co-equal authority with any other clause of the Constitution, so to limit that right to make treaties would be "Unconstitutional."
Perhaps an Unconstitutional treaty would be one that is signed by the Vice President and consented to by Congress.
Arthur,
Thanks for stopping by!
I don't really think that the Constitution is amended by treaty, just that an originalist or plain text interpretation could lead to that conclusion. I would say that a common sense interpretation would make an amendment to the constitution follow the procedures there, which would also argue against an activist court interpretation.
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