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September 1st, 2010

Signing Away The Constitution

By Nathan Tucker

Can the federal government exceed its constitutional limitations simply by making a treaty that gives it that power?  This question, which has been debated since the Constitution’s ratification, has taken on a greater urgency over fears that the Senate may yet try to ratify the U.N. Convention on the Rights of the Child (UNCRC) this year before a new Senate takes office in January

The UNCRC has been signed by every single country in the United Nations except for the United States and Somalia.  President Clinton signed it in 1995 but never presented it to the Senate due to opposition from conservatives who argued that the treaty violated the rights of parents by subjecting such prerogatives to “the best interest of the child.”  President Obama, citing our failure to ratify the treaty as embarrassing, has promised to send it to the Senate for ratification.

But no where in the Constitution does it give the federal government any power to regulate intimate family decisions.  Of the limited, enumerated powers listed in that document, none of them give the federal government the authority to interfere with the parent-child relationship in any way.  With the exception of the Fourteenth Amendment, Washington lacks the ability to enter into a human rights treaty establishing the civil, political, economic, and social rights of anyone, children or otherwise.

Proponents of the UNCRC and other similar treaties argue that the Constitution does not place any restrictions on the ability of the federal government to enter into a treaty.  For instance, then-Secretary of State John Foster Dulles infamously stated in 1952 that:  “Treaties, for example, can take powers away from Congress and give them to the President; they can take powers from the states and give them to the Federal Government, or to some international body and they can cut across the rights given the people by the Constitutional Bill of Rights.”

Tragically, Secretary Dulles did not reach this conclusion out of a vacuum.  Years before Justice Oliver Wendell Holmes, in Missouri v. Holland (1920), had upheld a treaty that regulated the hunting of migratory birds because, according to the Court, a treaty could provide Congress with the power to regulate an area that the Constitution otherwise denied it.  The Court later affirmed this theory in United States v. Curtiss-Wright Export Corp. (1936).

The Supreme Court finally reversed direction in Reid v. Covert (1957) when it ruled that “no agreement with a foreign nation can confer power on Congress, or on any other branch of Government, which is free from the restraints of the Constitution…There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with provisions of the Constitution.”

The cause for so much confusion over the issue is the language of the Constitution’s Supremacy Clause in Article VI.  The Clause proclaims that all “Laws of the United States which shall be made in Pursuance [of the Constitution…] shall be the supreme Law of the Land.”  Because treaties were declared to be the supreme law of the land only if they were made “under the Authority of the United States” rather than pursuant to the Constitution, many have argued throughout the years that the federal government’s treaty making power was not bound by the Constitution.

But, as the Reid Court noted, “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 treaties which concluded the Revolutionary War, would remain in effect.”

As those who drafted and ratified the Constitution made clear, the phrase “under the Authority of the United States” did not mean treaties could be made that violated the Constitution.  At the Virginia ratifying convention, Governor Edmund Randolph responded to the fears of Patrick Henry and George Mason over the treaty making power by arguing that, “[b]eing creatures of that Constitution, can [the President and Senate] destroy it?”

George Nicholas agreed, contending that the federal government can “make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers.”  Joining him, James Madison stated:  “Here, the supremacy of a treaty is contrasted with the supremacy of the laws of the states.  It cannot be otherwise supreme.”

Thomas Jefferson argued that “I say the same as to the opinion of those who consider the grant of treatymaking to be boundless.  If it is, then we have no Constitution.”  Elsewhere, Jefferson stated that “surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.”

Alexander Hamilton, nationalist though he was, argued that the “only constitutional exception to the power of making treaties, is that it shall not change the Constitution…”  Later, he wrote that “[a] treaty cannot be made which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States.”

The power of the federal government to enter into treaties with other nations is limited to those specific, enumerated powers given to it by the Constitution.  If that document does not grant the federal government the authority to regulate in a particular area, then it is powerless to accomplish such a feat by its treaty making power.  The ability to ratify treaties simply does not grant the President and Senate the authority to rewrite and supersede the Constitution absent the amendment process.

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About the Author

Nathan W. Tucker

Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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