[extropy-chat] Treaties ratified by the US Senate (was Re: Iraq and legality again)

[Mike Lorrey]

--- Brett Paatsch <bpaatsch at bigpond.net.au> wrote:

> Mike Lorrey wrote:
> 
> > You don't get it: treaties that are ratified by the US Senate are
> US
> > law.
> 
> I'm almost inclined to exclaim "Very Good Mike Lorrey". This is my
> understanding too. I certainly think that such stands to reason.
> However
> I am not a lawyer, nor am I a US citizen, though I am interested in
> the US and in its law and in its welfare. 
> 
> Can you please show me, if you are able and I do think you are, and
> perhaps this will help you show some of your developing skills with
> marshalling a legal arguments concisely, how it is that you have 
> concluded that "treaties that ate ratified by the US Senate are US
> law."

http://www.house.gov/Constitution/Constitution.html

This:
Article II, Section 2, Clause 2, says: "He [The President] shall have
Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur;"

determines how treaties become ratified by the US, while this:

Article III, Section 2, Clause 1, says: "The judicial Power shall
extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority;--to all Cases affecting
Ambassadors, other public Ministers and Consuls;--to all Cases of
admiralty and maritime Jurisdiction;--to Controversies to which the
United States shall be a Party;--to Controversies between two or more
States;--between a State and Citizens of another State; (See Note
10)--between Citizens of different States, --between Citizens of the
same State claiming Lands under Grants of different States, and between
a State, or the Citizens thereof, and foreign States, Citizens or
Subjects. "

Establishes the subject matter jurisdiction of the supreme Court (as
stated in Article III, Section 1) over interpretation of all Treaties
made, giving said treaties legal weight equal to the Common Law, Equity
Law, and any statutory law that is subsidiary to that Constitution, and
specifying all classes of parties that would fall under the personal
jurisdiction of that court as well. (Note that the Supreme Court does
not have personal jurisidiction over cases between a state and its own
citizens, or between foreign states and their own citizens or
subjects).

However it clearly states "under the Constitution", i.e. common law,
equity law, statute, and treaty are all subsidiary to the US
Constitution. This is a legal opinion, not universally accepted
(http://www.unwatch.com/treaties.html) as even today some judges, even
Justice Kennedy, are citing foreign legal precedent and foreign treaty
as if they override the US Constitution, whenever such precedents or
treaties serve Kennedy or his allies left-wing agenda of deconstructing
the Constitution's protections against foreign tyranny over Americans.
Congress is currently mulling a bill which will prohibit US courts from
citing foreign court rulings in their own opinions, as unconstitutional
imposition of foreign law upon Americans, one of the reasons the US had
its revolution against England (plaintiffs in the colonies were often
required to travel to England to have cases heard, imposing
considerable expense and risk of death).

This being said, it is clear that treaties which have been ratified by
the Senate and signed by the President are US law. Changes to US
statute to comply with rulings of the WTO under the terms of the GATT
Treaty have been several over the past decade since its ratification,
including changes to steel subsidies and import quotas. Changes to DOT
statutes and regulations have also been effected to comply with the
NAFTA, particularly in allowing Mexican and Canadian truck drivers to
service customers within the US (while being free to maintain their
rigs in compliance with trucking regs in their own home states or
provinces) rather than just transporting cargoes to customs houses at
or near the border.

Treaties have also established the legal boundaries of the United
States, such as the Webster-Ashburton Treaty of 1842, which resolved
boundary differences between the US and british Canada along the Maine
and New Hampshire boundaries, differences which arose from the
vagueness of language in the original Paris Treaty that resolved the
Revolutionary War
(http://en.wikipedia.org/wiki/Republic_of_Indian_Stream . As such,
treaties establishing boundaries of legal jurisidictions

Supporting the constructionist opinion vis a vis the US Constitution
being above treaties, there is not a single amendment to the US
Constitution which has ever been brought about by a treaty with a
foreign nation or other organization. Furthermore, the founding fathers
agree:

"Addressing the scope and limits of the Constitution’s treaty power,
James Madison — often described as the father of the Constitution —
said the following:

'I do not conceive that power is given to the President and the Senate
to dismember the empire, or alienate any great, essential right. I do
not think the whole legislative authority have this power. The exercise
of the power must be consistent with the object of the delegation.'

Thomas Jefferson emphatically agreed with Madison’s depiction of the
limits placed upon the treaty power. If the treaty-making power is
"boundless," warned Jefferson, "then we have no Constitution." On
another occasion, Jefferson elaborated:

'By the general power to make treaties, the Constitution must have
intended to comprehend only those objects which are usually regulated
by treaty, and cannot be otherwise regulated.... It must have meant to
except out of those the rights reserved to the states; for surely the
President and Senate cannot do by treaty what the whole government is
interdicted from doing in any way.'

Alexander Hamilton was in perfect agreement with both Madison and
Jefferson. "The only constitutional exception to the power of making
treaties is, that it shall not change the Constitution.... On natural
principles, a treaty, which should manifestly betray or sacrifice
primary interests of the state, would be null." (Emphasis added.)

The observations of Jefferson and Hamilton are particularly valuable in
light of the danger posed by the ICC treaty. Since the president and
Senate are strictly and explicitly forbidden by the Constitution to
deny the protections and immunities guaranteed by the Bill of Rights,
they have no authority to conclude a treaty that would have the same
result. To paraphrase Hamilton, any such treaty signed by the president
and ratified by the Senate would, on "natural principles," be null and
void."  http://www.unwatch.com/treaties.html

To have both federalists and anti-federalists agree on this point
should make it clear what the founders intent was.

In this respect, a treaty with another nation does not prevent the
United States government from choosing to act to enforce or protect the
rights of its citizens if that nation is violating them, because the US
Constitution's Bill of Rights is clearly superior to any treaty the
Senate may ratify, nor does it prevent the US gov't from enforcing any
other provision of the US Constitution against the claimed
interpretation of any treaty. The Amistad case in particular is an
early example of this, in which US law against transporting slaves from
Africa to the US (the slaves claimed they had been kidnapped from the
African coast) was contested against diplomatic and legal treaties with
the King of Spain (whose subjects owned the ship and claimed to own the
mutinied slaves of the Amistad and to have been transporting them
between two ports of Cuba when the mutiny occured.)
http://www.law.umkc.edu/faculty/projects/ftrials/amistad/AMI_SCT2.HTM

I highly encourage the reading of this opinion, and of this history of
the events leading up to it here: 
http://www.law.umkc.edu/faculty/projects/ftrials/amistad/AMI_ACT.HTM

Mike Lorrey
Vice-Chair, 2nd District, Libertarian Party of NH
"Necessity is the plea for every infringement of human freedom.
It is the argument of tyrants; it is the creed of slaves."
                                      -William Pitt (1759-1806) 
Blog: http://intlib.blogspot.com

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