Constitution Trumps Treaties

especially concerning land control

(called ConTrumps for short)

 

by

Forest Glen Durland

Control and use of land by the federal government is strictly limited by the Constitution of the United States. No treaty can supersede or alter the Constitution. This fact is thoroughly discussed in the thesis, Limited Federal Government. "Constitution Trumps Treaties" deals with the documentation on the subject of limitation of treaty power.

Few words by me are needed. The excerpts below say it.

One will immediately notice that the subject of treaty power versus the Constitution has many points. I will let the Justices of the Supreme Court discuss those in the following paragraphs. Of interest is the indefinite line between treaty power and legislative power. This is, indeed, interesting. Another point of contention is whether or not treaties are self executing. It appears that Congress can negate a treaty. It certainly is the wish of this writer that they would test it out on the UN Charter, which a treaty, and a very harmful one.

Clarification of a clause in the Constitution of the United States is in order here. Article VI, clause 2 declares 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is the last clause that is misunderstood, even by attorneys. “... Constitution or Laws of any State ...” refers to the Constitutions of the several states, NOT the Constitution of the United States. The Founding Fathers were much too well informed to allow the state Constitutions to alter the United States Constitution. That would have been self defeating. The truth of the matter is that neither treaties nor state laws can supersede or alter the Constitution of the United States. Our national document is etched in stone. It is unfortunate that most Congress Persons do not read stone.

The following is a powerful excerpt from page 482 of the documentation: “A question growing out of the discussion above is whether the treaty power is bounded by constitutional limitations. By the supremacy clause, both statutes and treaties ``are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other.''\328\ As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed [[Page 483]] the Court has numerous times so stated”.

The stand taken by Forest follows in this excerpt from the Constitution, which limits land ownership by the federal government. The United States Constitution states in Article I, Section 8:

The Congress shall have the power . . .
... To establish Post Offices and post Roads; ...
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; ...
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; ...

 

That is the limit for federal government control and use of land. If it is not authorized by the Constitution of the United States, it can not be legally be done by the federal government. The federal government simply has no authority to control any land outside those limits. When discussing the limiting character of the Constitution, the Federalist Papers make this point very clear.

“Constitution Trumps Treaties” makes it clear that absolutely no treaty can supersede the Constitution. Therefore, no plant, no fish, no flying bird, no wildlife can authorize the federal government to alter the mandates of the Constitution.

The power grab for land is well discussed in “Rout the Land Regulators” at <http://www.uhuh.com/reports/headsup/ hu106.htm#ROUTLANDREGULATORS,hu106>.

As stated in the opening sections of this paper, limitations on federal land use and control is the crux of the thesis Limited Federal Government. To go beyond that concept is to violate the Constitution, a simple fact judges and other federal public servants must recognize in honor of their Oath of Office.

 

Documentation for ConTrumps

Taking information out of context is a most unscholarly act. The facts used must be in a setting portraying the context intended by the original author.

That said, sentences have been extracted from government files to convey the limitation of treaty power. The immediate paragraph from which it was extracted is included here in the documentation. In addition, the link to the government site is included to enable the reader to go to the source and study the cases from which the documentation was extracted. Forest Glen Durland and uhuh will assume no responsibilities of any kind. Go to the original that is linked here and rely on that. The information here is for your convenience. After all, you would not have been aware of treaty abuse if this page had not been created.

Treaty Docs. Since government sites have a habit of disappearing, the entire contents of a section of government documentation was copied without change to preserve that information on treaties. That copied information has been posted for your convenience at <http://www.uhuh.com/control/treatydocs.htm>.

The url for the government source is <http://www.access.gpo.gov/congress/senate/constitution/art2.html>, extracted from of the Executive.

The excerpts below are from that source. I have added the bold.

The idea being documented here is that no treaty, not even the UN Charter, which is a treaty, can alter or override the Constitution of the United States.

 

Forest Glen Durland

Saratoga, CA

January 15, 2002

 


Excerpts for ConTrumps

[Excerpts on Treaty Limitation]

[from the Executive]

[Source: <http://www.access.gpo.gov/congress/senate/constitution/art2.html>]

 

[[Page 470]]

...

The act of ratification for the United States is the President's act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators [[Page 471]] present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business.

...

[[Page 473]]

...

[In] Ware v. Hylton\275\ the Court struck down the state law as violative of the treaty that Article VI, paragraph 2, made superior. Said Justice Chase: ``A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the constitution of a State . . . must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States shall be superior to the Constitution and laws of any individual State; and their will alone is to decide.''\276\

...

[p 477]

...

[In regards to the Panama treaty] In short, the treaty commitments of the United States do not diminish Congress' constitutional powers.

...

``Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.''

...

[Page 481]]

...

And Congress could not ordinarily penalize private acts of violence within a State, but it can punish such acts if they deprive aliens of their rights under a treaty.\320\ [ p 482 if necessary and proper, Article I, Section 8.]

...

In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress' enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures which independently of a treaty Congress could not pass; the only question that can be raised as to such measures will be

[[Page 482]]

whether they are ``necessary and proper'' measures for the carrying of the treaty in question into operation.

...

However, the treaty-making power is neither a right nor a duty, but one of the powers ``vested by this Constitution in the Government of the United States.'' Art. I, Sec. 8, cl. 18.

...

A question growing out of the discussion above is whether the treaty power is bounded by constitutional limitations. By the supremacy clause, both statutes and treaties ``are declared . . . to be the supreme law of the land, and no superior efficacy is given to either over the other.''\328\ As statutes may be held void because they contravene the Constitution, it should follow that treaties may be held void, the Constitution being superior to both. And indeed [[Page 483]] the Court has numerous times so stated.

...

[[Page 483]]

...

``The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.''. ...``It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.''

...

[[Page 484]]

...

Controversy over the Holmes language apparently led Justice Black in Reid v. Covert\335\ to deny that the difference in language of the supremacy clause with regard to statutes and with regard to treaties was relevant to the status of treaties as inferior to the Constitution. ``There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in `pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire constitutional history and tradition--to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.''\336

...

Establishment of the general principle, however, is but the beginning; there is no readily agreed-upon standard for determining what the limitations are.

...

[On migratory birds]

...

Nevertheless, the issue, in the context of Congress' power under the necessary and proper clause to effectuate a treaty dealing with a subject arguably within the domain of the

[[Page 485]]

States, was presented as recently as 1920, when the Court upheld a treaty and implementing statute providing for the protection of migratory birds.\338\ ``The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.''\339\ The gist of the holding followed. ``Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed.''\340\

 

[Note: Forest Glen Durland disagrees with the statement from above: “We see nothing in the Constitution that compels the Government to sit by...”. Government's use and control of land is very definitely limited by the Constitution. Therefore, government has no power to rule over any land, or water that runs with that land (a vital concept), where migratory birds stop. This has become a major issue in the Klamath Basin Crisis, where the farmers actually create food for the birds. The judge who penned that ruling above is quite short sighted, if not blind. Also see "Court Cooks Glancing Goose" in Limited Federal Government.]

...

 

Jefferson, in his list of exceptions to the treaty power, thought the Constitution ``must have meant to except out of these 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.'' Jefferson's Manual of Parliamentary Practice ... But this view has always been the minority one. ...

...

It is not, in other words, the treaty power which enlarges either the federal power or the congressional power but the international character of the interest concerned which might be acted upon.

...

[[Page 486]]

...

Jefferson listed as an exception from the treaty power ``those subjects of legislation in which [the Constitution] gave a participation to the House of Representatives'' although he admitted ``that it would leave very little matter for the treaty power to work on.'' Jefferson's Manual, op. Cit., n.337, 299.

...

It has also been suggested that the prohibitions against governmental action contained in the Constitution, the Bill of Rights particularly, limit the exercise of the treaty power. No doubt this is true, though again there are no cases which so hold.\344\

...

``The treatymaking power of the United States . . . does extend to all proper subjects of negotiation between our government and other nations.''

...

\347\Other reservations which have been expressed may be briefly noted. It has been contended that the territory of a State could not be ceded without such State's consent.

...

President Taft objected that no treaty could transfer to a tribunal not known to the Constitution any part of the judicial power of the United States and a compromise was arranged.

...

[[Page 487]]

...

In brief, the fact that all the foreign relations power is vested in the National Government and that no formal restriction is imposed on the treaty-making power in the international context\348\ leaves little room for the notion of a limited treaty-making power with regard to the reserved rights of the States or in regard to the choice of matters concerning which the Federal Government may treat with other nations; protected individual rights appear to be sheltered by specific constitutional guarantees from the domestic effects of treaties, and the separation of powers at the federal level may require legislative action to give municipal effect to international agreements.

...

[[Page 492]]

...

In the early cases of Cherokee Nation v. Georgia,\374\ and Worcester v. Georgia,\375\ the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign state within the meaning of that clause of the Constitution which extends the judicial power of the United States to controversies ``between a State or the citizens thereof and foreign states, citizens or subjects.'' Second, it held: ``The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words `treaty' and `nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.''\376\

...

[[Page 493]]

...

Present Status of Indian Treaties.--Today, the subject of Indian treaties is a closed account in the constitutional law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871, it was provided ``That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.''\382\ Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, pro tanto, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State.\383\ Similarly, statutes modifying rights of members in tribal lands,\384\ granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,\385\ or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,\386\ have been sustained.

...

When, on the other hand, definite property rights have been conferred upon individual Native Americans, whether by treaty or under an act of Congress, they are protected by the Constitution

[[Page 494]]

to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress.\387\ [Note: The Indians in Klamath Falls, OR sold their reservation. Therefore, they exercised their property rights and no longer have either voice or rights there. This is "protected by the Constitution". Another view of the situation argues that the Indians were not ready, and that a large paper company had its eye on the vast stand of pine on the reservation. Forest]

...

A regular staple of each Term's docket of the Court is one or two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the States. Thus, though no treaties have been negotiated for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.

...

INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL

The capacity of the United States to enter into agreements with other nations is not exhausted in the treaty-making power. The Constitution recognizes a distinction between ``treaties'' and ``agreements'' or ``compacts'' but does not indicate what the difference is.\388\ The differences, which once may have been clearer, have been seriously blurred in practice within recent decades. Once a stepchild in the family in which treaties were the preferred offspring, the executive agreement has surpassed in number and perhaps in international influence the treaty formally signed, submitted for ratification to the Senate, and proclaimed upon ratification. ...

...

During the first half-century of its independence, the United States was party to sixty treaties but to only twenty-seven published executive agreements. By the beginning of World War II, there had been concluded approximately 800 treaties and 1,200 executive agreements. In the period 1940-1989, the Nation entered into 759 treaties and into 13,016 published executive agreements. Cumulatively, in 1989, the United states was a party to 890 treaties and 5,117 executive agreements. To phrase it comparatively, in the first 50 years of its history, the United States concluded twice

[[Page 495]]

as many treaties as executive agreements. In the 50-year period from 1839 to 1889, a few more executive agreements than treaties were entered into. From 1889 to 1939, almost twice as many executive agreements as treaties were concluded. In the period since 1939, executive agreements have comprised more than 90% of the international agreements concluded.\389\

...

Not all such agreements, of course, are published, either because of national-security/secrecy considerations or because the subject matter is trivial. In a 1953 hearing exchange, Secretary of State Dulles estimated that about 10,000 executive agreements had been entered into in connection with the NATO treaty. ``Every time we open a new privy, we have to have an executive agreement.''

...

One must, of course, interpret the raw figures carefully. Only a very small minority of all the executive agreements entered into were based solely on the powers of the President as Commander-in-Chief and organ of foreign relations; the remainder were authorized in advance by Congress by statute or by treaty provisions ratified by the Senate.\390\ Thus, consideration of the constitutional significance of executive agreements must begin with a differentiation among the kinds of agreements which are classed under this single heading.\391\

...

[T]he distinction between so-called `executive agreements' and `treaties' is purely a constitutional one and has no international significance.''

...

[[Page 496]]

...

Congress has, with respect to the authorization to the President to negotiate multilateral trade agreements under the auspices of GATT, constrained itself in considering implementing legislation, creating a ``fast-track'' procedure under which legislation is brought up under a tight timetable and without the possibility of amendment.

...

[[Page 498]]

International Organizations.--Overlapping of the treaty-making power through congressional-executive cooperation in international agreements is also demonstrated by the use of resolutions approving the United States joining of international organizations\408\ and participating in international conventions.\409\

...

[[Page 500]]

...

Also, there are such time-honored diplomatic devices as the ``protocol'' which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one.

...

[[Page 501]]

...

Of a kindred type, and owing much to the President's capacity as Commander-in-Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.\420\ Commenting on such an agreement, the Court remarked, a bit uncertainly: ``While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.''\421\ Justice Gray and three other Justices were of the opinion that such action by the President must rest upon express treaty or statute.\422\

...

[[Page 503]]

The Litvinov Agreement.--The executive agreement attained its modern development as an instrument of foreign policy under President Franklin D. Roosevelt, at times threatening to replace the treaty-making power, not formally but in effect, as a determinative element in the field of foreign policy. The President's first important utilization of the executive agreement device took the form of an exchange of notes on November 16, 1933, with Maxim M. Litvinov, the USSR Commissar for Foreign Affairs, whereby American recognition was extended to the Soviet Union and certain pledges made by each official.\431\

...

[[Page 504]]

 

... but soon the executive agreement, as an adjunct of treaty arrangement or solely through presidential initiative, again became the principal instrument of United States foreign policy, so that it became apparent in the 1960s that the Nation was committed in one way or another to assisting over half the countries of the world protect themselves.\436\ Congressional disquietitude did not result in anything more substantial than passage of a ``sense of the Senate'' resolution expressing a desire that ``national commitments'' be made more solemnly in the future than in the past.\437\

...

[[Page 505]]

...

\In 1918, Secretary of State Lansing assured the Senate Foreign Relations Committee that the Lansing-Ishii Agreement had no binding force on the United States, that it was simply a declaration of American policy so long as the President and State Department might choose to continue it. 1 W. Willoughby, op. cit., n.294, 547. In fact, it took the Washington Conference of 1921, two formal treaties, and an exchange of notes to eradicate it, while the ``Gentlemen's Agreement'' was finally ended after 17 years only by an act of Congress.

...

[[Page 507]]

...

Certainly, executive agreements entered into solely on the authority of the President's constitutional powers are not the law of the land because of the language of the supremacy clause, and the absence of any congressional participation denies them the political requirements they may well need to attain this position. Nonetheless, so long as Belmont and Pink remain unqualified, it must be considered that executive agreements do have a significant status in domestic law.\448\ This status was another element in the movement for a constitutional amendment in the 1960s to limit the President's powers in this field, a movement that ultimately failed.\449\

...

Chief Judge Parker held that an executive agreement entered into by the President without congressional authorization or ratification could not displace domestic law inconsistent with such agreement. The Supreme Court affirmed on other grounds and declined to consider this matter.

...

``Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.'' The limitation relevant on this point was in Sec. 2, which provided: ``A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.''

 

[End excerpts]


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