Posted on 05/06/2007 8:21:20 PM PDT by Carry_Okie
Another well done article. The sad thing is, much of the harm that slavery and Jim Crow did this country continue still - they truly are the reason for much of the overbearing nature of this out of control snowball - and I’m NOT talking about race. You summed it up well here:
“But, but, but… there had been the injustice of slavery under the old system and afterward with Jim Crow laws in the reconstructed South! So, what was so bad about equal protection? Well, it goes back to that the tension that existed at the very founding of this country: Powers sufficient to reverse historic injustices can have their perverse consequences when directed to unjust purposes…”
Correct. You are talking about the sanctity of private property. Once the Federal government usurped the control of slaves, it had the precedent to meddle in all sorts of evils in the name of enforcing "equal protection."
Taking control of an asset is equivalent to gaining ownership. From desiring control of others' property, we seek to gain it by acting collectively to effect police power. By relying upon police power we build the institutions capable of enslaving us.
Such is the wondrous nature of G-d's laws and liberty: They are self-enforcing. It might surprise you to note that it was violation of the Tenth Commandment that led to this. The people of the North coveted the power to force liberation of slaves without simply buying them all on the open market. It would have been far cheaper and far less destructive than the Civil War to have done so, not to mention the impact upon the Constitution.
If you liked the article, let me know if you want a book.
bump to read later
“In seven years discussing this on FR, I’ve never seen anyone cite such a case, and believe me, there has been occasion.”
Fairly trivial to accomplish. Took about five minutes.
First, follow this link to the discussion on Find Law:
http://caselaw.lp.findlaw.com/data/constitution/article02/10.html#1
Reat this section:
Constitutional Limitations on the Treaty Power
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 the Court has numerous times so stated. (329)
There are several cases listed in the footnotes. For example:
Footnote 329] ‘’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.’’ Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853). ‘’It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.’’ The Cherokee Tobacco, 11 Wall. ( 78 U.S.), 616, 620 (1871). See also Geofroy v. Riggs, 133 U.S. 258, 267 (1890); United States v. Wong Kim Ark, 169 U.S. 649, 700 (1898); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924).
I think the confusion here is this phrase in the Constitution: “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.”
Reading the article referenced above, it appears that the legal consensus is this phrase lists a hierachy of authority. First, the Constitution. Then the co-equal laws and treaties but lesser authorities.
Yawn.
This is dicta. I've given you an example of a treaty that is SO FAR beyond the scope of the Constitution that there is no question it should not be allowed to stand. It stands.
Show me a case where a provision of a treaty has been ruled unconstitutional and thereby invalidated. Name one.
“Show me a case where a provision of a treaty has been ruled unconstitutional and thereby invalidated. Name one.”
The article clearly states that none have been invalidated. It does give case citations where the courts have stated that treaties must be IAW the Constitution.
In the theoretical case you’ve advanced, it would come down to whether the 2nd Amendment addresses a collective or an individual right. IOW, nothing has changed.
Now that I’ve had another cup of coffee, I would like to make another comment.
If your theory is correct, this theory could be used to amend the Constitution in any number of ways. For example, a President negotiating in secret with a single foreign power could propose a treaty to Congress and this treaty could be enacted by three members of Congress. This treaty could enact a President for Life, re-instate slavery, or any number of things all without following the amendment process. Do you think the founders intended to give such powers to the federal government? Surely, they foresaw this possibility. The obvious inference is that they did and considered treaties to be co-equal with other laws passed by the Congress but subordinate to the Constitution. This is entirely consistent with the case citations and the article provided.
It effectively has been so amended in any number of ways.
For example, a President negotiating in secret with a single foreign power could propose a treaty to Congress and this treaty could be enacted by three members of Congress.
In theory, yes. In practice, we don't know how badly abused that process is because we don't have benefit of the records of quora at the time. You clearly have a hard time accepting the premise that the Founders would have accepted Patrick Henry's rat. They had to. The country was broke and needed loans. I am virtually certain that our foreign-born "banker" knew that such were the terms.
Since when did the Founders envision multilateral treaties either? As it is, the President secretly negotiates with collections of foreign powers, each capable of post facto exceptions AND adjudications that change the meaning of the terms after US ratification. Both effectively change the terms of a treaty after the fact.
Do you hear any screaming about that?
This treaty could enact a President for Life, re-instate slavery, or any number of things all without following the amendment process. Do you think the founders intended to give such powers to the federal government?
Treaties acknowledge the creation of a nation, including the United States. They also include provisions for national surrender in which a foriegn power can dictate the form of government (ask Germany or Japan). That's not in the Constitution either.
Surely, they foresaw this possibility.
Yup, and they accepted it as a remote risk. They left controlling the terms up to the people, and so it remains. The article says that too.
The obvious inference is that they did and considered treaties to be co-equal with other laws passed by the Congress but subordinate to the Constitution.
Of course they did, which the article very clearly cites.
We’ll start with the scope of their powers. The Constitution, Article VI, Clause 2 states:
“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.”
Treaty law supersedes both Congressional statues and all state laws, which given the abuse of the Commerce and General Welfare clauses should be enough to give one cause for pause. The obvious saving caveat is the phrase, “under the Authority of the United States.” It should be fairly obvious that this phrase renders any treaty that involves powers not enumerated in the Constitution void. In other words, the government of the United States does not have the authority to agree to terms with any other nation, the enforcement of which would require powers that exceed its Constitutionally enumerated powers. So in theory at least, a citizen whose rights have been violated by an unconstitutional treaty should be able to sue and have the treaty thrown out.
This is entirely consistent with the case citations and the article provided.
Yup. It hasn't stopped them, has it? No matter how outrageous the terms of a treaty have become, including committing the entire economy and all land to stopping natural selection or enforcing provisions against parents of their minor children, not one treaty has been legally voided on the grounds that it exceeded its Constitutional authority. No matter how bogus was its ratification, including providing no proof that there was either a quorum or that two-thirds of "senators present" voted for it, not one treaty has been legally voided on the grounds that it was ratified improperly. What makes you think that, after all these decades of "settled law" the SCOTUS will do it now?
Thus I think it highly appropriate, no, critical, that the people of this country understand the kind of gun under which they're living. The foes of liberty have been clever enough to use treaty law to nibble around the edges of our unalienable rights by passing broad, obscure, feel-good provisions and then changing the effective terms in Federal Court. Knowing that might even make citizens just a tiny bit more vigilant about matters of creeping tyranny.
I see it, sir.
Good, I'm sick of these bastards!!
Thank you both for taking time to research this material and bring it to our attention.
If you liked that article, you'll probably appreciate this one too.
Shooting the cat is a good starting point. The point of the 2nd amendment is to maintain on leash on tyrannical acts of politicians. The ink and paper on a treaty will be as much protection as the typical domestic protection order. The paper never stops flying lead from a provoked party.
Not just 2/3 of the Senate present, but also approval by "unanimous consent" so there is no record who was present or how they voted. That really underscores the danger of sending unprincipled slime balls to serve in the Senate.
You are so right,unfortunately.
Is this a ping or a bonk?
A “whack” upside the head, I think.
We need one from time to time. There are too many here who blindly worship the Constitution. It has its flaws, especially among the amendments.
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