The Supremacy Clause

Posted on: January 24, 2011

By Don Fotheringham

Is a treaty with a foreign country superior to the U.S. Constitution? Some would like you to think so. It’s not a new idea, but it pops up every few years and is about to surface again as President Obama revives a very bad treaty. The measure at hand is the United Nations Convention on the Rights of the Child (UNCRC). It was signed almost 20 years ago by President Bush (the elder) and again later by the Clinton administration, but never ratified by the Senate.

Considering the rash desperation that rules in Washington, and the no-huddle plays called by Mr. Obama, passage in the Senate is a fearful possibility. Could anything be worse than that? Unfortunately yes. The UNCRC could not only bind American families under a radical UN “law,” but passage of the treaty could punch a gaping hole in the U.S. Constitution. The notion that treaties supersede the Constitution has been so flagrantly propagated that some citizens and members of Congress actually believe it. Many who read Article VI ignorantly, really do think treaties are greater than the Constitution.

Granted, a quick glance at Article VI of the Constitution may give that impression, but that’s only because so few understand the meaning of this important article, the logic behind it, and the reason for its emphatic wording. The clause in question is paragraph two, known as the Supremacy Clause:

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.

The 1787 Convention was called to resolve major problems that developed among the thirteen states under the Articles of Confederation (1781 to 1789). One serious problem was conflicting treaties: those made independently by the states and those made by the Confederation Congress in behalf of the Confederation as a whole.

Congress had appointed Jefferson, Franklin and Jay to negotiate trade and peace treaties between the Confederation and the nations of Europe. But the European powers refused to sign them. They questioned the validity of accords with Congress as opposed, for example, to existing agreements with Virginia or North Carolina. They asked which treaty would be supreme, a state’s treaty or one made by Congress?

Another problem facing the Confederation was a dangerous mix of foreign policies carried out by states having treaties with the Indian tribes. Those treaties covered matters of peace, access to lands, and trade agreements. Some of the states conducted wars independently with the Indian nations and settled their disputes with peace treaties without the concurrence of neighboring states.

Benjamin Franklin expressed his concern over such developments:

The power of making peace or war with Indian nations is at present supposed to be in every colony, and is expressly granted to some by charter, so that no new power is hereby intended to be granted to the colonies. But as, in consequence of this power, one colony might make peace with a nation that another was justly engaged in war with; or make war on slight occasions without the concurrence or approbation of neighboring colonies, greatly endangered by it; or make particular treaties of neutrality in case of a general war, to their own private advantage in trade by supplying the common enemy; all of which there have been instances; it was thought better to have all treaties of a general nature under a general direction, that so the good of the whole may be consulted and provided for….

The Confederation Congress repeatedly tried to unify the states in these matters, but to little avail. In the absence of a federal court system, Congress attempted to establish the supremacy of its treaties by resorting to the state courts. A state court, however, is naturally bound by its constitution, so the judges ruled inevitably in favor of the state’s treaties and against those made by Congress.

When the time came to write a new constitution, the treaty problems were a top priority. In fact, the first attempt to assemble a convention six months earlier at Annapolis was called to address trade and treaty questions exclusively. So when the Convention met in 1787, its delegates were determined to solve the Confederation’s conflicting treaty problems, and thereby speak to the world with one voice.

This explains the purpose and strong language of Article VI. The authors of our Constitution made it abundantly clear that only United States treaties would be valid and universally recognized. There would be no more state-made treaties. Federal treaties would be the supreme, officially recognized treaties regardless of state laws or the opinions of state judges. Notice that the Supremacy Clause also puts muscle behind the old treaties made by Congress under the Articles of Confederation. The former Congress finally had its day in court!

Enemies of the Constitution have played fast and loose with the language of Article VI. One of the most outlandish assertions came in 1952 from John Foster Dulles (later to serve as Eisenhower’s Secretary of State) who said treaty laws can override the Constitution:

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.

Can you imagine the founders of our nation spending four months in Philadelphia, hammering out every possible way to limit and separate the powers of a federal system, working to secure the unalienable rights of the people – and after all that brilliant, painstaking work, draft one clause that wipes out the entire Constitution and the whole purpose of the Convention?

President Obama’s voice in the Senate is Barbara Boxer, who along with Obama has said the UNCRC is long past due. Meanwhile, on the other side of the aisle we hear, as an opposing argument, the false alarm of treaty supremacy over the Constitution. If Boxer gets two-thirds of the Senate to ratify the UNCRC, and the false opposition successfully feigns fear for the Constitution, our enemies may walk away with two extra points: families in America will register their kids with the UN, while our country suffers major constitutional damage.

The treaty deception pops up again and again in the media, classrooms, the courts, and Congress. Fortunately, not all who believe that nonsense are smitten by the objectives of Secretary Dulles, who was a founding member of the Council on Foreign Relations – not exactly friends of the Constitution.

A few lawyers have dissected the Supremacy Clause, claiming anything “made in pursuance” of the Constitution differs from anything “made under the authority of the United States.” But these are not divergent factors; they are the parallel phrases of an 18th century literary style. America’s founders regarded any federal law or treaty not made pursuant to the Constitution as illegal and unenforceable. They did not identify two sources of authenticity for a proper treaty or a proper federal law. Each is either constitutional or it is not. In other words, all federal laws and all federal treaties made in pursuance of the Constitution are equally legitimate.

Upon ratification of the Constitution, all state treaties were nullified and their constitutions were amended accordingly. Thereafter, only federal treaties were recognized. United States treaties are created when proposed by the President, with the advice and consent of the Senate. The combined power of the President and the Senate, in their treaty-making capacity, was never intended as a power to alter the Constitution, as James Madison made clear:

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

And to this, Thomas Jefferson added:

I say the same as to the opinion of those who consider the treaty-making power to be boundless. If it is, then we have no Constitution.

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