Do Treaties Supersede the US Constitution?



That is the question raised in light of Lord Christopher Monckton’s speech last week in Minnesota.

That is a position that some on the left who want a larger global agenda trump US sovereignty would claim.  At the center of the debate is the 2nd clause of Article VI of the US Constitution which 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So does an international treaty such as Copenhagen Climate Change Treaty trump the Constitution.  In a word, no.

In Reid v. Covert the Supreme Court in 1957 wrote in the majority opinion that:

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 War, would remain in effect.  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. 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.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.

If there is case law more recent than this that nullifies this, please let me know… I’m not a legal scholar by any stretch of the imagination.  I do note troubling trend of jurists referencing international law in their decisions, which I don’t think has any place in federal or state case law, but the meme that a treaty will supersede the US Constitution does not bode true from what I’ve read so far.

Now will a treaty signed by the President and ratified by the Senate trump state law?  That’s a different issue, and it would appear that yes it could.  Under the Marshall Court in the majority decision in Gibbons v. Ogden states:

This opinion has been frequently expressed in this Court, and is founded as well on the nature of the government as on the words of the Constitution. In argument, however, it has been contended that, if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject and each other like equal opposing powers.

But the framers of our Constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act  inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to, the laws of Congress made in pursuance of the Constitution or some treaty made under the authority of the United States. In every such case, the act of Congress or the treaty is supreme, and the law of the State, though enacted in the exercise of powers not controverted, must yield to it. (emphasis mine)

So with that in mind the treaty referred to by Lord Monckton (or any international treaty for that matter) is troubling.  One section that Lord Monckton seemed to be refer can be found on pg. 18-19:

38. The scheme for the new institutional arrangement under the Convention will be based on three basic pillars: government; facilitative mechanism; and financial mechanism, and the basic organization of which will include the following:

(a) The government will be ruled by the COP with the support of a new subsidiary body on adaptation, and of an Executive Board responsible for the management of the new funds and the related facilitative processes and bodies. The current Convention secretariat will operate as such, as appropriate.

(b) The Convention’s financial mechanism will include a multilateral climate change fund including five windows: (a) an Adaptation window, (b) a Compensation window, to address loss and damage from climate change impacts, including insurance, rehabilitation and compensatory components, (c) a Technology window; (d) a Mitigation window; and (e) a REDD window, to support a multi-phases process for positive forest incentives relating to REDD actions.

(c) The Convention’s facilitative mechanism will include: (a) work programmes for adaptation and mitigation; (b) a long-term REDD process; (c) a short-term technology action plan; (d) an expert group on adaptation established by the subsidiary body on adaptation, and expert groups on mitigation, technologies and on monitoring, reporting and verification; and (e) an international registry for the monitoring, reporting and verification of compliance of emission reduction commitments, and the transfer of technical and financial resources from developed countries to developing countries. The secretariat will provide technical and administrative support, including a new centre for information exchange.

As with any bill or treaty the devil is in the details, and I’m leery about any international agreement.  Based on who President Obama surrounds himself with I’m troubled by how it may be implemented.  So with that in mind I’d encourage you to contact your Senator to discuss let them know that it’s ratification would not be in the best interest of the United States.

HT: Chicago Blues Girl for pointing me to a copy of the treaty.

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  • http://livedout.blogspot.com Frances

    I think the question is not whether treaties logically should trump the Constitution, but whether judges will use it to trump the Constitution. I am not betting on logic winning.
    .-= Frances´s last blog ..Capital and Poverty =-.

    • http://www.caffeinatedthoughts.com Shane Vander Hart

      @Frances, Oh I agree, and I think we need to take judges referring to international law in their decisions seriously.

  • http://homewardbound-cb.blogspot.com ChrisB

    Re: treaties and states, a recent SCOTUS case (can’t remember details, but it was about a foreign national being executed by TX) said Congress has to actually pass into law anything from a treaty that is expected to apply to states. That seems to go against the plain reading of Art VI, but that’s what they said.

    • http://www.caffeinatedthoughts.com Shane Vander Hart

      @ChrisB, Also contradicts the Marshall Court, but I’m glad they decided that way.

  • ChrisT

    Dont forget the Last-in-Time rule.

    BLACK’S LAW DICTIONARY (8th ed. 2004) (defining the Last-in-Time rule as the “principle that a later statute negates the effect of a prior one if the later statute expressly repeals, or is obviously repugnant to, the earlier law”);

    The Last in Time rule was developed by the Supreme Court in the context of conflicts between treaties and federal law in a series of cases from the late 19th century.

    The the case of Edye v. Robertson the Court opined, “so far as the provisions in that act may be found to be in conflict with any treaty with a foreign nation, they must prevail.” Moreover, the Constitution gave treaties no superiority over acts of Congress. The Court then reasoned that since treaties and acts of Congress are equal under the Constitution, a treaty is “subject to such acts as Congress may pass for its enforcement, modification, or repeal.”

    • http://www.caffeinatedthoughts.com Shane Vander Hart

      @ChrisT, Thanks for the comment. Good info.