A Defense of the U.S. Constitution From Its Domestic Enemies.
by Publius Huldah
If President Obama signs a “global warming” treaty at the United Nations’ “Climate Change” Conference in Copenhagen this December; and if the U.S. Senate ratifies it, will it become part of the supreme Law of the Land?
We hear it said that whenever the President signs, and the Senate ratifies, a Treaty, it becomes part of “the supreme law of the land”. But is that True? Not necessarily! Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.
You must always ask: Is this authorized in the Constitution? Where exactly in the Constitution? And precisely what is authorized by the Constitution? Let us start at the beginning:
1. Does the federal government have authority to make treaties? Can treaties be about any subject? Or, are the proper objects of treaties limited by The Constitution?
Art II, Sec. 2, cl. 2, U.S. Constitution, says, respecting the powers of the President:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…
Article VI, cl. 2 says:
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. [emphasis added]
Thus, we see that the federal government is authorized to make treaties. Now, we must find out whether there are limitations on this treaty making power.
2. It is a classic rule of construction (rules for understanding the objective meaning of writings) that one must give effect to every word & phrase. The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.
So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States“.
3. From where do the President and the Senate get Authority to act? From The Constitution. The objects of their lawful (as opposed to usurped) powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”. If the Constitution does not authorize the President or Congress to act on a subject, the Treaty is not “Law” – it is a mere usurpation, and deserves to be treated as such (Federalist No. 33, 6th para). Because the Constitution is “fundamental” law (Federalist No. 78, 10th -11th paras), it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. (e.g., Federalist No. 78, 9th para).
4. The Federalist Papers were written during 1787-1788 by Alexander Hamilton, James Madison, and John Jay, in order to explain the proposed Constitution to The American People to induce them to ratify it. Because of this, The Federalist is the most authoritative commentary on the meaning of The Constitution. Thus, we must always consult The Federalist to learn what it says about any constitutional provision. In Federalist No. 44 (7th para from end), James Madison said that a treaty which violates a State constitution would have no effect in that State:
…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added]
Madison thus illustrated the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist on this point. So, let us turn to Thomas Jefferson:
In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]
Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]
According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]
5. So! We see from the above that the treaty making power of the United States is very limited! What, then, are the proper objects of treaties? To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do! The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, Sec. 8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, Sec. 8, cl. 11). The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, Sec. 2, cl. 2).
The Federalist Papers discuss the treaty making power of the United States. John Jay said treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd and 6th paras). Madison said treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1st and 3rd paras).
In addition, Art I, Sec. 8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Thus, The United States could properly enter into treaties respecting patents and copyrights.
6. Now, let us consider the proposed “climate change” treaty. There exists somewhere a 200 page draft agreement which, during December 2009, is to be hammered out, put into final form, and signed in Copenhagen. If signed by Obama and ratified by the Senate, would it become part of “the supreme Law of the Land”?
To answer that Question, we must first ask: Does The Constitution authorize Congress to make laws about the objects of the proposed “climate change” treaty? One wants to see the actual 200 page draft agreement, but it appears, from various web sites, that the gist of the scheme is for the governments of the “rich” nations to reduce the “greenhouse gas emissions” within their borders and to send money to the “poor” nations to bribe them to sign the treaty and to compensate them for our “past emissions”. There seem also to be provisions for entrepreneurs like AlGore to sell “carbon offset credits” or “emission reduction units” to those who emit more than “their share” of “greenhouse emissions”. [By the way, from where does AlGore get them to sell?]
And just what, pray, are “greenhouse emissions”? Primarily, carbon dioxide, methane, and water vapor. Carbon dioxide: the gas which humans and other animals exhale, and which plants must have for photosynthesis [sounds like a good system to me]. Methane: The gas which animals belch. All very easy to control: Kill most of the people and most of the animals! Shut down our remaining industries. Stop the cars. Turn off the electricity. Cut off supplies of propane. Prohibit the burning of wood. And water vapor! Oh! We must stop poisoning the world with Water!
So! The Questions are these: Does The Constitution grant to Congress the power to make laws respecting the reduction of carbon dioxide, methane, water vapor, etc. “emissions”? Is transferring wealth from Americans to “poor” nations to compensate them for our “past emissions”, one of the enumerated powers of Congress? Does The Constitution grant to the Executive Branch jurisdiction over carbon dioxide, methane, and water vapor?
The answer is NO! Accordingly, if the Senate were to ratify the “climate change” treaty, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States. It would be a mere usurpation and would deserve to be treated as such. Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties. It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.
7. While the statist-in-chief will surely sign a Treaty in Copenhagen, ratification requires two thirds of the Senators present (Art. II, Sec. 2, cl.2). Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty? But even if 67 faithless Senators vote to ratify it, then we may take heart from the words of James Madison in Federalist No. 44 (16th para):
… in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…
and Alexander Hamilton in Federalist No. 33 (5th para):
…If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify….
Read again the foregoing passages! The statists can not enslave us without our acquiescence. For too long, we have blindly accepted whatever we hear others say. Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!” We are told that “The Rule of Law” requires us to obey every order, law, court opinion, or treaty coming out of the federal government. And not only do we believe such nonsense, we repeat it to others. And thus, we became part of the misinformation dissemination network. In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Learning, Thinking and Analysis. And then, we must learn to say, “They don’t have authority under The Constitution to do that!” Pay attention to the words of our beloved James Madison and Alexander Hamilton. PH
October 27, 2009
Obama, his administration (Clinton), and Congress is/has been doing an end around on the Constitution for a long time with these treaties with other Countrys and the UN. It is time to ask by what AUTHORITY in the U.S. Constitution do they have to commit Americans and our way of life? It is time to ANNUL any treaty not authorized. We can only do that by electing Senators that know and understand that the Constitution limits this authority to only the areas in the above and that going outside that is a violation of their oath of office and possible treason against the United States.
If 2/3 of the senators present approve a treaty, and the president signs it, they have acted on the subject, and it has been authorized for them to do so according to that social contract called the Constitution of the United States. Yes, president after president has been emboldened by their predecessors to make end runs around the Constitution. However, the Constitution itself laid the groundwork for its own demise. Its framers not only ignored God's righteous laws, but opposed them with the whims of men. The same Article (6) that makes international treaties part of the "supreme law of the land" forbids the requirement of any religious test for any office, while the Holy Scriptures specify men who fear the LORD. God is not mocked. John Locke's social contract theory is a departure from God's covenant reflected in the Mayflower compact and many colonial charters as well as many early state constitutions. The "supreme law of the land" is based on natural law theory and has not stood the test of time against social Darwinism. If we are going to throw off the yoke of tyranny, we must use the right weapons, beginning with personal and national repentance toward God and faith in the Prince of the kings of the earth, our Lord Jesus Christ.
In section 7 you ask the question: "Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty? "
As I demonstrate in the following article: http://howtorescueamerica.org/trilogy.html - the American people "lost" their vote just after the Civil War through the introduction of first, the "confidential" ballot that second, morphed in the 1880s into the "Secret Ballot". If you accept my assertions & methodology then it automatically follows that no vote since that time could have been absolutely "verified". As such, any assertion that all votes since then have been "compromised" is just as valid as any assertion that they "weren't". "we" didn't "elect" anyone!/mac
Please understand one thing. It requires 2/3 of "THE SENATORS PRESENT" . Therefor the necessary number is not necessarily 67. These idiots we elect have had many sessions in the dark of night in order to get the numbers and results they want.
I didn't post this to nitpick what the author wrote but to provide information that the authority (which many overlooked) to enter into a treaty is specified in the Constitution and it is very limited.
Sorry, but Congress did not create the EPA. The EPA as well as OSHA were formed by an executive order signed by Richard Milhouse Nixon. This is why Executive Orders should have a sunset limit on them. If needed, then Congress can pass a law enacting them (if they are Constitutional), otherwise, they go away.
Yep, my wages were frozen under his lame policy.
Congress could eliminate many of the beauracratic departments without writing law by just defunding them as THAT is a legal power the Legislature has in the Constitution.
Very True Fred, Now EO's are a dime a dozen..!!
phrowt: Respectfully, They know exactly what Publius Huldah is talking about in the above piece. To suppose that our elected representatives are totally in the dark on this issue is ludicrous. What they are is complicit in a program to give us a "Living Constitution" which is to say NO Constitution. That's what all of them want. If I'm wrong why hasn't one of our elected representatives pinned Obama to the wall on the natural born Citizen question or a host of other issues we all know he is dodging, like the phony social security number, for one? They are with him on this attack on our Constitution because they too can't function free and loose under its imperatives. It is too limiting for them. Just as Obama chafes under its restricting HIS power it restricts THEIR power too! To be honest, unless we replace the whole bunch of them nothing will stop the slow, inexorable march toward placing us under a global government orchestrated by the U.N. Oath of office? That's something they have to say to get into office. Once in they violate it on a daily basis!
Clarence, correct, they know; it is we the people that must let them know we know. Annulment is our only other option before it hits the fan. To do that, we need to start by sending this to every member of the Senate as Publius Huldah suggests. It may get a percentage of those who have been ignorant of the requirements of their oath to wake up. If not, they must be replaced. I'm sure you noticed how irate Senator Hatch was when he was challenged and there is a distinct possibility of his losing his seat. The same thing has to happen to all of them.