treatyMany people who don’t care for our constitution or are totally ignorant of it are peddling this notion that treaties will trump the constitution.  It is true that the constitution states in what has become known as the “Supremacy Clause” that:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

However, just like laws that the federal level passes, treaties must be made: “in pursuance” of the Constitution’s delegated powers as well.  To do otherwise is a serious usurpation of the very nature of our Constitutional Republic.  To allow foreign law to trump the Supreme Law of the Land leaves the people of this nation in a precarious situation at best with their liberties.

It is important to remember that what was stated before the constitution was ratified is what takes precedence when divining the meaning of the constitution.  Why?  Because this was the basis of ratification, this is what the people of each state understood to be the law when they agreed to the new Constitution.  The thing most people forget is if there is ever a conflict between what the Framers said versus the assurances they gave to the Ratifiers, it is the latter which holds the most weight because it was these assurances that swayed the ratifiers to approve this new constitution.

With that being said, the only Federalist Paper (that I could find) which dealt with the question of treaties, in relation to the Constitution in the context we are discussing, was in Federalist #64 written by John Jay.  In it, Jay explains how treaties will have the force of law:

“Some are displeased with it [The Proposed Constitution], not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws…”  

He also explains that they will be the supreme law of the land, meaning affecting all states and their people:

“Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land.”

But, he assures that there are safeguards in place by having the power of treaty making split between the Senate and the President, not just the Senate but it had to be two thirds of it.  He explains how this separation of power would be the biggest safeguard especially since all the states are represented in the Senate.  This was before the 17th amendment, when states appointed people to send to Washington to sit in the Senate, in this way the state was free to pull them back and replace them should the states’ interests not be represented properly at the national level.

The federalists felt that this was a good enough separation of powers and Jay could not fathom a federal government that would ever pass things that would not be in the country’s best interest for he writes:

“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 such 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.

However, there must have been those who had expressed doubt that this separation was a good enough safeguard because John Jay 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 law of nations.”

Now, many might be left scratching their head at the mention of the law of nations, I know I was.  I did some searching and could only find Jon Roland’s www.constitution.org which seemed to answer this.  Mr. Roland states:

“It is important to understand what is and is not included in the term “law of nations”, and not confuse it with “international law”. They are not the same thing. The phrase “law of nations” is a direct translation of the Latin jus gentium, which means the underlying principles of right and justice among nations, and during the founding era was not considered the same as the “laws”, that is, the body of treaties and conventions between nations, the jus inter gentes, which, combined with jus gentium, comprise the field of “international law”. The distinction goes back to ancient Roman Law.

            Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone’s Commentaries, and prosecution of those who might violate them:

  1. No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.
  2. Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.
  3. Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.
  4. Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.
  5. Care and decent treatment of prisoners of war.
  6. Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.
  7. Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one’s territory or are found on the high seas.

And, although it was not yet firmly established with all nations in 1788, 

            8. Prohibition of enslavement of foreign nationals and international trading in slaves.

No subsequent additions to the “law of nations” could have the effect of expanding the delegated powers under the Constitution. Ratification froze those powers at the moment of ratification. Only the amendment procedures provided under the Constitution can add to, subtract from, or modify them and thus make them binding upon the states’ and its people. – http://constitution.org/cmt/law_of_nations.htm

So, treaties cannot “trump” the Constitution, as many people claim, unless they are put in place as a Constitutional Amendment.

But, I found still further evidence of this understanding in New York’s Ratification Instrument, that is, the document which the State of New York drafted stating what THEY understood this new binding document upon them to mean:

That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state. –

Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 1 (2d ed. Washington, D.C., 1836). Pg. 329

Maryland as well, used similar language in their instrument:

That no treaty shall be effectual to repeal or abrogate the constitutions or bills of rights of the states, or any part of them. – Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2 (2d ed. Washington, D.C., 1836). Pg. 553

North Carolina:

Become a member and support the TAC!

That no treaties 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 conformable to such treaty; nor shall any treaty be valid which is contradictory to the Constitution of the United States. – Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 4 (2d ed. Washington, D.C., 1836). Pg. 246

So, treaties not only do not “trump” the Constitution, they don’t trump State Constitution’s either.  This was what was spelled out as the understanding of the states before the Constitution was ratified.  What’s more it was this understanding that the states had that convinced them to actually ratify the Constitution.

The founders’ objective was to draft a “limited constitution,” said Jefferson, “to bind” our delegates “down from mischief.”  Unfortunately for those who view the Constitution as an obstacle or an obsolete document and wish to UN-bind those chains subverts not only the entire constitutional scheme but, constitutes a fraud on the Ratifiers.  The power loving are always more than willing to exploit the ignorance of the general public to the original meaning of the Constitution to bring all things under the purview of the federal government.  It is imperative that we share our founders wisdom to make sure that this does not happen.

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