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MEDIUM RARE by Jim Rarey
January 22, 2000

TREATIES VS THE CONSTITUTION AS LAW OF THE LAND

The original premise of this article was to document, from the views expressed by the founding fathers, that treaties cannot override the constitution under original intent. It has been a firmly held conviction by this writer that courts have erred in the instances where provisions of treaties have been given precedence over the constitution.

To buttress this belief, all discussions of treaties in the Federalist Papers, Anti-Federalist Papers and Constitutional Convention debates were analyzed. Much to the dismay and consternation of this author, the evidence shows that our founders recognized that treaties could (theoretically) override the constitution, but advanced various rationales as to why that would never happen.

Each of the three authors in the Federalist Papers (James Madison, Alexander Hamilton and John Jay) wrote extensively about various aspects of treaties. In the following exposition, most of their views will be paraphrased in the interest of conserving space. Some will be quoted verbatim to preserve the original flavor of their thinking.

Madison, of the three authors, seemed the least concerned about a deleterious effect of treaties on the constitution. He compares treaties to contracts between sovereigns having no effect on those “ruled” by the sovereigns other than in commercial treaties. Madison seems to rely on the good faith of those negotiating on behalf of the United States. However he does qualify that in Federalist #43 where he states, “It is an established doctrine on the subject of treaties that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void.”

Hamilton (Federalist #75) admits of the possibility a president having the sole power to make treaties might be influenced by his own personal gain. He felt this possibility was negated by requiring ratification of treaties by the Senate. His faith in the Senate was predicated on the fact that senators were appointed by the state legislatures and would be responsive to the interests of those legislators, thus diminishing the possibility that a treaty could gain the necessary two thirds majority if it was contrary to the interests of that majority.

Hamilton also defended the provision that required only a two thirds majority of those present (as opposed to two thirds of the entire Senate) saying essentially that the senators’ allegiance to the states would promote their regular attendance to defend those interests.

None of the founders foresaw the adoption of the 17th Amendment (providing for the direct election of senators) which radically changed the character of individuals populating the Senate. Nor could they have foreseen that the Senate would adopt rules making it possible for as few as two senators to ratify a treaty (one to preside and the other to make a unanimous consent request).

Jay, who would become the first Chief Justice of the Supreme Court, was equally incredulous of bad motives on the part of U.S. treaty makers, writing in Federalist #64, “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 much 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.” He 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 laws of nations.” Here, as does Madison, he attributes bad faith only to other parties to the treaty, not the U.S.

Not all at the convention were so sanguine about the treaty making power. A minority of the Pennsylvania delegation put forth a number of proposals including the following with regard to treaties. “That no treaty which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed, or made comfortable to such treaty; neither shall any treaties be valid which are in contradiction to the constitution of the United States, or the constitutions of the several states.”

Needless to say, the provision was not adopted. The arguments primarily of Hamilton and Jay, as to why that would never happen, carried the day. The Pennsylvania minority published reasons they could not vote to adopt the constitution in their state convention, including this provision, which became a part of the Anti-Federalist papers.

Now, fast forward to the year 1954. John Bricker, a senator from Ohio, was concerned about a number of Supreme Court decisions regarding treaties. The effect of those rulings was that rights protected by the constitution could be altered or abolished by treaty. Among those decisions were: Ware vs. Hylton (1796) where the court upheld the taking of Hylton’s property in violation of the due process requirement of the fifth amendment to fulfill a treaty with Great Britain.

A later case, Missouri vs. Holland (1920) ruled that a treaty could give the Congress powers that are prohibited to it by the tenth amendment.

In United States vs. Pink (1942) the court held that a personal agreement (executive agreement) between FDR and Russian Foreign Minister Litvinonov, nullified provisions of the laws of the State of New York and the U.S. Constitution which forbid confiscation of private property without due process and just compensation.

These court decisions and the myriad treaty obligations contained in the United Nations charter and its subsequent treaties and “protocols”, along with the over 10,000 executive agreements regarding NATO alone, prompted Bricker to offer a constitutional amendment. The amendment read as follows, “A provision of a treaty or other international agreement which conflicts with this Constitution, or which is not made in pursuance thereof, shall not be the supreme law of the land nor be of any force or effect.”

President Eisenhower and his Secretary of State, John Foster Dulles, vigorously opposed the amendment claiming it would hamper the president in conducting foreign policy. Why the president needs to be able to violate the constitution in order to conduct foreign policy was not explained.

The final vote on the amendment in the Senate was 60-31 in favor of the amendment. This fell one vote short of the necessary two-thirds majority of those present and it was defeated.

As things stand today, Supreme Court precedents have been set that would allow treaties and executive agreements to override the constitution giving the president and/or congress powers prohibited to them by the constitution.

What is needed today is a constitutional amendment, similar to the Bricker amendment. This writer would add one provision to Bricker’s original wording; to wit, “No vote in either house of Congress on final passage of a bill or resolution shall be taken by other than a recorded vote with a quorum in attendance.”

We need legislators in Congress with the courage and integrity to introduce such an amendment. My nominations for the task would be Ron Paul in the House and Bob Smith in the Senate. Readers of this article who are constituents of those two courageous and honest legislators; this is your call to action. Start by sending copies of this article to them.

On this issue, we cannot rely on the “original intent” of the founding fathers. A quote from Thomas Jefferson, whose religiosity has been questioned by revisionist historians, seems appropriate. “God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?”

Permission is granted to reproduce this article in its entirety.

The author is a free lance writer based in Romulus, Michigan. He is a former newspaper editor and investigative reporter, a retired customs administrator and accountant, and a student of history and the U.S. Constitution.

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