What happened to the Tenth Amendment?

Sierra Times ^ | 01/23/03 | Robert Greenslade

[AdamSelene235]

http://european-convention.eu.int/amendemTrait.asp?lang=EN

[general_re]

A careful reading of Reid v. Covert 1956 reveals that the only real limits on treaty power are the partitioning of States (without their consent) and a head-on contradiction of the Constitution.

I think you need to dig a bit deeper. The particular case cited on this point in Reid is Whitney v. Robertson, 124 U.S. 190 (1888), which is quite clear that treaties are not nearly as omnipotent as you make them out to be...

But, independently of considerations of this nature, there is another and complete answer to the pretensions of the plaintiffs. The act of congress under which the duties were collected, authorized their exaction. It is of general application, making no exception in favor of goods of any country. It was passed [124 U.S. 190, 194] after the treaty with the Dominican republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance. In Taylor v. Morton, 2 Curt. 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice CURTIS, of this court, and he held that whether a treaty with a foreign sovereign had been violated by im; whether the consideration of a particular stipulation of the treaty had been voluntarily withdrawn by [124 U.S. 190, 195] one party, so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise,- were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. And he justly observed, as a necessary consequence of these views, that, if the power to determine these matters is vested in congress, it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter, whether the reasons were good or bad.

In these views we fully concur. It follows, therefore, that, when a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that character belong to another department of the government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will. In Head-Money Cases, 112 U.S. 580 , 5 Sup. Ct. Rep. 247, it was objected to an act of congress that it violated provisions contained in treaties with foreign nations, but the court replied that, so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after a full and elaborate consideration of the subject, it held that, 'so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.'

[AdamSelene235]

So what would you say the hard limits on treaty powers are?

[Carry_Okie]

The Convention on Nature Protection was adopted in 1941 under fraudulent auspices. That's what's in the Congressional Record. It is the most powerful treaty underlying the ESA. There hasn't been a ruling on the scope of this treaty because it has gone unchallenged. Very few people even acknowledge its existence. I'd tell you more about what's going on in that realm to create the standing for a case, but not here. I'm the author of the book I cited above.

(Whereas in an ideal world every jury in America would make such judgements...with appeal, of course.)

The informed jury is indeed an ideal; especially if we could chuck the exclusionary rule.

[AdamSelene235]

Article VI

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

[AdamSelene235]

I'd tell you more about what's going on in that realm to create the standing for a case, but not here.

ahhhh....

I understand, and wish you luck!!

[general_re]

The only "hard" limits, insofar as the courts are concerned, are conflicts with the provisions of the Constitution. But that leaves out the fact that the judiciary is neither the most important nor the most powerful check upon the treaty-making power of the Executive - Congress is. The extent of treaty powers is not generally a justiciable issue, except where a treaty directly conflicts with some provision of the Constitution, per Reid. But, as Whitney says - and Reid so affirms - the courts have deferred to Congress on the matter of what the extent of treaty powers are, and have affirmed the power of Congress to alter, modify, or nullify any or all provisions of a treaty by simple legislative act. And the reason that they can do so is that the courts do not consider treaties to be on a par with the Constitution itself, and they never have. So in that sense, asking what the hard limits on treaty powers are is sort of akin to asking what the hard limit to the power of Congress to impeach is - it's a judgement call, reserved to the legislature as a political matter, not a legal matter.

[Carry_Okie]

I guess I should have continued the citation:

This unconstitutional treaty (the Convention on Nature Protection) is the root of the proliferation of “sub-species.” It is the cited authority for the powers exerted by Federal Agencies through the courts. Proponents for such multilateral treaties claim that they supercede the Constitution, per Article VI, Clause 2: “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.”

Note that the bolded phrase directs the scope of treaty authority to the Constitutions and Laws of the States, not the Constitution of the United States.

This claim of treaty authority ignores that treaties are authorized UNDER the Constitution. Therefore, any treaty that violated it would be void, because:

1. The Constitution and the Declaration of Independence acknowledge property rights as unalienable and stated that the purpose of government is to secure those rights.

2. The officers who negotiate and ratify treaties take an oath to abide by the Constitution. They do not have the legal authority to negotiate, ratify, or enforce an illegal document.

Supreme Court decisions have prohibited treaties that violate Constitutional provisions because government lacks the authority to conclude an agreement that violates Constitutional rights.

The Constitution grants limited powers to a Federal Government of the States. The framers did not envision treaties among an unspecified group of governments, each capable of post facto reservations (effectively changes in the terms of the treaty after ratification). The government is thus exceeding its authority when it concludes such an agreement.

I know, since when has that stopped them? Well, since when have property owners learned how to set up a test case in such a way as to make sure that the constitutional case, and the appeals, are correctly structured and conducted as to make for such a test?

It doesn't happen. That's the problem. Consider how long we waited for a case that was a decent test of the Second Amendment.

[general_re]

Right. One of the most commonly misread parts of the Constitution, to be sure. The key is the phrase you didn't highlight - "anything in the Constitution or laws of any State to the contrary notwithstanding." Both "Constitution" and "laws" should be read as part and parcel of the phrase "of any state" - it is a reference to state constitutions, not the Federal Constitution. Treaties supersede state constitutions, not the US Constitution - and, indeed, this is exactly how the courts have interpreted Article VI over the last 227 years or so. Given a moment's thought, most of us would probably agree that it should be that way - rather than have 50 different foreign policies, each state conducting their own, the Constitution rules that treaties supersede state laws and constitutions, in the interest of a single voice when dealing with other nations.

And, of course, treaties do not necessarily trump federal law, as Whitney and Reid make clear - the issue of which prevails is based simply on the old rule about new law prevailing over old. If a federal law is passed that conflicts with prior treaty provisions, the law prevails - if a treaty is ratified that conflicts with prior law, the treaty provisions prevail, when they are self-executing. And when treaty provisions appear to conflict with the Constitution itself, then and only then will the courts involve themselves in the dispute, and will hold the Constitution to supersede any treaty provision that conflicts with it, as per Reid.

[AdamSelene235]

In a nutshell: the Constitution, Congress, and courts limit the power of treaties.

This is all fine and dandy with the exception of the fact the Constitution is inadequate to prevent the growth of the state (as we've bitterly learned) and Congress and the Courts have no damn interest in limiting their own powers!!

See the problem?

[AdamSelene235]

I know, since when has that stopped them?

That's my point. The Constitution did not come from Mount Olympus and is profoundly and most likely, given the intelligence of the Founders, Deliberately Flawed.

Well, since when have property owners learned how to set up a test case in such a way as to make sure that the constitutional case, and the appeals, are correctly structured and conducted as to make for such a test?

Good luck!

It doesn't happen. That's the problem. Consider how long we waited for a case that was a decent test of the Second Amendment.

That's what I'm screaming !!!

[general_re]

There is no piece of paper in the world that is adequate to the task of protecting us from ourselves. The real problem isn't the courts or the Congress or the government or the Constitution - the root problem behind all of this is the fact that your neighbors have discovered that they can vote themselves panem et circenses. The nature of the current state is merely symptomatic of that deeper problem, rather than being the actual problem itself. Neither Congress or the courts impose things on an unwilling populace, for the most part. Oh, sure, every once in a while they'll try to sneak things past us, but generally speaking, if they do a thing, you can pretty much rest assured that most people think whatever it is, is just fine and dandy. And so it is with this.

But Congress and the courts still listen when the people speak. The trick is getting the people to speak in ways that you find palatable, and there is no law and no court case that can make that so - hearts and minds are where the real battleground for the nation is...

[Djarum]

But they were long term thinkers, they left routes open to degrade the 2nd.

Surely you've noticed.

The only route left open was total corruption of the fed, which could easily be corrected if the majority cared to do so.

[AdamSelene235]

The only route left open was total corruption of the fed, which could easily be corrected if the majority cared to do so.

Really, what's the largest percentage of the Senate that can be voted out at one time?

[Djarum]

Really, what's the largest percentage of the Senate that can be voted out at one time?

As the founders intended, 0. That doesn't negate the fact that, still, the States selected all members of Congress in one way or another.

[AdamSelene235]

No more than 1/3 of the Senate can be voted out at one time.

Do you think this is an accident?

Kinda like its an accident tax day is 6 months away from election day !

[Djarum]

I don't see why that matters, so long as the feds aren't appointing members of Congress.

[AdamSelene235]

Its just another little safeguard.

But you're right there is an opening there.

[Ken H]

"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."

Note that the bolded phrase directs the scope of treaty authority to the Constitutions and Laws of the States, not the Constitution of the United States.

That's exactly right!

I've read Article VI dozens of times but I completely overlooked it.

Also, treaties are made under the Authority of the United States. United States means the Federal government in the Constitution.

The Authority of the United States (the Federal government) is Limited by the Constitution, including the Bill of Rights.

[Ken H]

No more than 1/3 of the Senate can be voted out at one time.

Do you think this is an accident?

I think it's a good idea to stagger the Senate terms. Especially since the entire House runs every two years.

Also, electing 100 Senators every six years could cut both ways.

The original method of Senate appointments by State legislatures served as a better check on Federal power than the popularly elected Senate since the early 1900s.

Kinda like its an accident tax day is 6 months away from election day!

Which wasn't in the Constitution until the early 1900s.

They even took away booze after instituting the income tax. That's cold.

What the hell were they thinking in the early 1900s?