One of the most common questions posed to me when I discuss the Constitution on talk radio is “Can a treaty override the Constitution?” The question has arisen particularly in view of the pending Supreme Court case of Bond v. United States. In that case, Congress is claiming a power under the Treaty Clause that is outside the list expressly granted to it by the Constitution.
Under the Constitution as originally understood, the short answer is: “No, a treaty can’t override the Constitution. The treaty has the force only of a statute, not of a super-constitution.”
But the full answer is more complicated. This is because the Founding-Era evidence does suggest that the Constitution enables the federal government to acquire significant—although not unlimited—additional power by entering into treaties.
First, let’s examine powers the federal government cannot obtain by treaty:
Treaties cannot override the first eight amendments in the Bill of Rights or the Constitution’s other specific exceptions to federal authority (such as the ban on taxing exports). Those provisions were adopted to deny the federal government authority it otherwise might have. A treaty cannot override those limits.
For example, the First Amendment denies Congress authority to ban socialist literature from the postal system. The First Amendment would trump any treaty requiring Congress to do so. Likewise, the Second Amendment denies the federal government power to confiscate hand guns from law-abiding citizens. A treaty cannot take this protection away.
A plurality of the justices in the 1957 case of Reid v. Covert, which enforced the Fifth and Sixth Amendments against a contradictory treaty, recognized such limits on the Treaty Power. As the plurality wrote of the Supremacy Clause, “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.”
On the other hand, the Founding-Era evidence strongly suggests that the Treaty Power DOES enable the federal government to regulate many matters over which it might not otherwise have jurisdiction. If the President and two thirds of the Senate adopt a treaty regulating such matters, Congress may use its incidental authority under the Necessary and Proper Clause to enact laws carrying out that treaty. In this way, Congress may regulate subjects otherwise outside its sphere.
By way of illustration, the authority to acquire and cede land is incidental to the Treaty Power—a fact discussed during the Virginia ratifying convention (although Edmund Randolph argued that there were some limits to cession authority). If the federal government enters into a treaty acquiring or ceding land, then surely Congress may adopt incidental laws to carry it out.
Practice under the Articles of Confederation offers several more illustrations. The Articles strictly limited congressional authority, and granted no express commerce power. But James Madison pointed out that the Confederation Congress could acquire some power over commerce if needed to execute a treaty.
In 1783, the Confederation Congress debated and approved a treaty with the Netherlands despite recognizing that the terms of the treaty might interfere somewhat with freedom of religion. Thus Congress impacted the exercise of religion, an area over which the Articles otherwise gave it no authority.
Similarly, both the Confederation Congress and the early Federal Congress sent Christian missionaries to Indian tribes pursuant to treaties with those tribes. Under the Constitution, authority to send missionaries derived from the Treaty Power, not from the Indian Commerce Power.
During the ratification debates, opponents of the Constitution pointed to several ways in which the Treaty Power would enable the federal government to affect America’s internal affairs. They particularly noted that unless there were an amendment specifically protecting religion, the federal government might employ the Treaty Power to erect a national church. Some modern writers have belittled this argument, but in fact there were precedents to support it. Among them was King Charles II’s secret Treaty of Dover, negotiated in the 17th century, but not revealed until the 1770s. It called for re-establishment of the Catholic Church in England. A more recent precedent was the 1783 Confederation Congress’s treaty with the Netherlands, which as noted above incidentally restricted religious exercise.
The Supreme Court recognized the power of treaties to expand federal jurisdiction in the 1920 case of Missouri v. Holland. There was a time when I vehemently disagreed with this case, but the Founding-Era evidence has forced me to acknowledge that it was correct. (I do not suppress research findings, even when I don’t like them.)
What about the Ninth and Tenth Amendments? Aren’t they limits comparable to the First and Second Amendments? The answer is “no.” The Ninth and Tenth Amendments are clarifying, not substantive rules. If the Constitution grants the federal government a power through the Treaty Clause, the Ninth and Tenth Amendments do not apply.
The ability of treaties to expand the domestic jurisdiction of the federal government may have been a reason the Constitution required that treaties be approved by both the President and two-thirds of the Senate—rather than, as some Framers had proposed, just one or the other. The double requirement would make it likely that the President would protect the national interest while the Senate (then chosen by state legislatures) protected state interests.
There are, however, some limits on Congress’s power to execute treaties under the Necessary and Proper Clause. As Chief Justice Roberts acknowledged last term, that Clause embodies the Founding-Era doctrine of incidental powers.Incidental powers are restricted to those that are both (1) subordinate to powers listed expressly and (2) connected to them by custom or reasonable necessity. A treaty dealing with chemical weapons, for example, may empower Congress to adopt some criminal laws enforcing it, but it does not enable Congress to entirely refashion state criminal law.
Some argue that the federal government’s treaty power is more sharply limited. I disagree with those folks, but I list some of their arguments in my book, The Original Constitution: What It Actually Said and Meant.