By: Richard A. Correa Sr. SGT RIARNG, Retired
One of the most dangerous issues of today is the progressive view that a treaty with the UN is law superior to the US Constitution and that we should make interpretations of our law based on this and how foreign courts have resolved cases of a similar nature to cases before courts in the United States. Nothing can be further from the truth, but many people in the national government believe this and are even enforcing treaty provisions for treaties that have not been ratified by the US Senate. This view is based on the ‘Dulles Doctrine’:
“Secretary of State John Foster Dulles promulgated what some call the “Dulles Doctrine” that treaties, executive agreements, and votes in the United Nations, could effectively amend the U.S. Constitution and expand the powers of the federal government without limit.”
Further, this ‘doctrine’ is supported by the current administration as seen by the opinions expressed by individuals appointed by it to high government offices.
All of this is based on the ‘supremacy clause’ of the US Constitution, which we know from our last discussion is Article VI, paragraph 2 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.”
The argument of the progressives is that the supremacy clause of the constitution makes the provisions of a treaty law ‘superior’ to the constitution. Many scholars have expounded this point of view. However, it is obvious to anyone with a degree of common sense that it is an argument without validity.
A logical argument against this doctrine is simply how can the law that allows for treaties to be made ‘under’ it be replaced by such a treaty. A treaty cannot be made without the law that gives the government the authority to make the treaty and no where in the US Constitution does it state that a treaty made ‘under’ it becomes law superior to it. However, let us not base our insistence on the supremacy of the constitution over a treaty on my humble argument; instead let us see what the US Supreme court has to say on the subject. In ‘Reid v. Covert, October 1956, 354 U.S. 1, at pg 17’ the Supreme Court held 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 [354 U.S. 1, 17] 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. For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:
“The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”
This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.
There is nothing in Missouri v. Holland, 252 U.S. 416 , which is contrary to the position taken here. There the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.”
It is clear from this decision that the US Supreme court has ruled against such an interpretation of the US Constitution and that a treaty cannot change our constitution and is null and void when the treaty, or a provision of a treaty, is in conflict with the constitution.
To further clarify the issue, what did the founders of the nation say on this subject? Well, James Madison, the father of the US Constitution, said:
“I do not conceive that power is given to the President and the Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority to have this power.
Alexander Hamilton wrote:
“A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution“
And Thomas Jefferson said:
“I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution”
So it is clear that the doctrine that a treaty is law superior to the US Constitution is not true and never will be. The supreme law of this nation is the US Constitution and the only way to change it is to follow the amendment process of Article V.
So what is it that we want? We want the federal government of these United States to cease immediately enforcing any treaty, or portion of a treaty, that contradicts the US Constitution and to immediately quit enforcing any treaty or provision of a treaty that has not been ratified by the US Senate because it is NOT law in these United States of America and it’s territories.
