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To: Gianni
Nolu troll rarely has a point, other than he likes to rant and make personal attacks. Until he can demonstrate he is capable of maintaining a civil discussion, I don't see the necessity of dealing with him.

Implicit in most pro-secessionist arguments is that, after the Treaty of Paris in 1783, the United States were 13 independent, sovereign, entities working together in a loose coalition, league, or confederation. Sovereignty, they say, rests solely with the States. Some even go the the lengths of purposely refering to the "united States", emphasizing "united" as an adjective, rather than "United States" as a collective noun; denying the existance of the coountry.

My point is that the United States has been, since July 1776, an independent nation. American nationalism pre-dates the Declaration of Independence, expressed not only in documents such as the "Articles of Association," but in attitudes and collective experiences as British colonies, forced because of geography, to be increasingly self-sufficient. Americans had abundant experience in intra-colonial, as well as inter-colonial government prior to independence. Indeed, independence was driven, in part, from their past governing experiences.

I see the development of the American nation to be expressed in the development of a "national" (Madison = "general") government. From 1776 to 1781 the States did act autonomously, but cooperatively. But as early as 1777, the groundwork for the Articles of Confederation had been laid. Under the British Crown, sovereignty rested with the King. Americans decided, and expressed in their Declaration, that sovereignty rested with the people. When the people form representative governments, they not only empower those governments to do certain things, they transfer a degree of sovereignty to the government. (The concept of sovereignty implies not only supremecy and authority, but also the ablity to govern.)

The Articles of Confederation, when ratified in 1781, created a weak central authority, which was, for all purposes, a "national" government. (The term, "The United States of America" first shows up in the Articles.) Certain powers, that heretofore had been reserved by the individual States, were transfered to the confederal government. If the State can be considered to be "sovereign" and "independent" and capapble of self-rule, then too can a "national" government. Under the Articles, the States did not cede much, due in part to Americans understandable distrust of strong central authority.

By 1787 it was clear the Articles contained fatal defects. The Framers of the Constitution, who had ample experience in writing State constitutions, determined to replace, rather than repair the Articles. It is interesting to note, however, on the basis of textural analysis, nearly 2/3rds of the provisons in the Articles are preserved in the Constitution and the Bill of Rights.

In changing the form of government from a confederation with a weak central authority to a federal system with a stronger, but limited, authority, the Framers sought to reach a compromise between the well-established "sovereignty" of the States and the unexpressed sovereignty of the people. Under the Constitution, the States would retain sovereignty in State affairs. The federal government, authorized by the people, would exercise sovereignty in "national" affairs. The people would govern through representatives (a Republican form of government), including a national executive authority as well as State and federal legislators. Each level of authority, from the people through the federal government, possessing the prerogative to rule based on establish principles in written documents (i.e the rule of law). The Constitution is an expression of American nationalism, rather than a mere compact between State governments. Once established, no State possessed the right to unilaterally dissolve or exit the Union their people had ratified. The people retained the natural right of revolution if they suffered oppression; this is unchallenged. But in over 140 years I have yet to see a convincing case made that the secessionist states were truly oppressed. What I have seen is the attempt to conflate the right of revolution with the so-called right of secession.

Changing a form of government does not automatically create a new country. In our own history we see the progression from a cooperative, to a confederatioon, to a constitutional union. Nationality is more than government. This was recognized by Madison, Jefferson, Hamilton, et al. It is relevent what the people record as the birthdate of their country, because it provides a benchmark in time in the development of a nation. The American nation, declared in July 1776, exists because it is the will of the people that it do so.

1,656 posted on 10/30/2003 9:54:47 AM PST by capitan_refugio
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To: capitan_refugio
The Constitution is an expression of American nationalism, rather than a mere compact between State governments. Once established, no State possessed the right to unilaterally dissolve or exit the Union their people had ratified.

Once again you state your conclusions with no support from the document itself. Up until the WBTS, and even afterward in some instances, the interrelation of the states was oftentimes discribes as a sisterhood. Don't get me wrong, I like my sister, but when she decides to eat Thanksgiving dinner with her husband's family I'm not going to drive over there and kill them all.

Nationality is more than government.

Caution - you're diverting course from the Lincoln-worshippers with this one.

1,657 posted on 10/30/2003 10:32:43 AM PST by Gianni
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To: capitan_refugio
Changing a form of government does not automatically create a new country.

So apply that to the colonies. They declared their independence (IIRC 5 states before 4 Jul 1776) seperately and as a group. As an aside, the semantics of the word "state" has changed over the centuries, it once meant a country. From the Declaration:

these United Colonies are, and of Right ought to be Free and Independent States [Nations]; that they are absolved from all Allegiance to the British Crown, and that all political connection between them and the State [Nation] of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States [Nations], they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States [Nations] may of right do.
Those states/nations then formed a "firm league of friendship" under the Articles, but nowhere did they state that a new nation had been formed. First they stated that the "stile" 'of this Confederacy shall be "The United States of America"', but never use the phrase again. What they do use is the term "the United States in Congress assembled", which they use some 28 times. Immediately thereafter they noted that each "state retains its sovereignty, freedom, and independence".

In the Constitution the states/nations are referenced several times in the plural, i.e 'treason against the United States, shall consist only in levying War against them'; 'the United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion'; and ' the Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same'.

I doubt very seriously that the men writing the Declaration, the Articles and Constitution forgot the meaning of the word "state" in less than 20 years.

The Declaration was prefaced as the "unanimous Declaration of the thirteen united States of America". Calling this the "united" States of America no more made this one country than the United Nations is one country.

1,658 posted on 10/30/2003 12:08:52 PM PST by 4CJ (Come along chihuahua, I want to hear you say yo quiero taco bell. - Nolu Chan, 28 Jul 2003)
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To: capitan_refugio; Gianni; 4ConservativeJustices

REGARDING THE ASSERTED APPLICABILITY OF THE "RULE OF NINE"

Assume arguendo the rule was applicable as stated.

At any time, any nine states could wilfully and deliberately violate the contract, form a convention, and replace the contract with one of their choosing.

The righteous 9 could adopt and enact a contract on behalf of all 13 states saying anything. The righteous 9 could impose an Islamic Republic in which only sworn believers of Islam would be permitted to hold office. The righteous 9 could establish a Taliban court as the Supreme Judicial Court. The righteous 9 could permanently abolish habeas corpus.

As the union is perpetual and indissoluble, the heretical 4 are bound to the (now Islamic) union forever. They may not secede. If they do not ratify, the righteous 9 will meet in Congress and reserve chairs for when they succumb to economic coercion.

Should the heretical 4 attempt to secede, the righteous 9 have the legal right and sacred obligation to crush them. Following their destruction and surrender, the heretical 4 must conform their constitutions as directed by the righteous 9. They will be ruled by martial law until they have reformed to the satisfaction of the righteous 9.

THE AofC "RULE OF NINE" AS REVISED BY THE CONSTITUTION

U.S. Const., Article II, Section 2, Clause 1

He [the President] shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur; ....

BASIC CONTRACT LAW

In case of a material breach by one of the parties, said party shall not be allowed to benefit from the breach. Professor Martin specifically named 5 breaching states (GA, MD, NY, PA, VA). That only leaves a potential of 8 righteous, non-breaching states. Pursuant to the Rule of Nine, at least one heretical breaching state must have been allowed to participate in creating and enacting the new contract, obtaining benefit from his own breach.

In fact, PA was the second state to ratify, GA was the sixth state, and MD was the seventh state.

The new contract was brought to life by the first nine ratifications. Fully one-third of the actors who created the new contract were among those named by Professor Martin as having been in breach of the Articles of Confederation.

RI was not alleged to have committed any breach, yet was subjected to economic coercion by all five of the allegedly breaching states.

SUBJECTING OUR CONSTITUTION TO INTERNATIONAL LAW


1,659 posted on 10/30/2003 12:59:56 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
SOVEREIGNTY

"The term 'sovereign' or 'sovereignty,' says Judge Story, "is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions." Without any disrespect for Judge Story, or any disparagement of his great learning and ability, it may safely be added that he and his disciples have contributed not a little to the increase of this confusion of ideas and the spread of these mischievous and unfounded conclusions. There is no good reason whatever why it should be used in different senses, or why there should be any confusion of ideas as to its meaning. Of all the terms employed in political science, it is one of the most definite and intelligible. The definition of it given by that accurate and lucid publicist, Burlamaqui, is simple and satisfactory -- that "sovereignty is a right of commanding in the last resort in civil society."1 The original seat of this sovereignty he also declares to be in the people. "But," he adds, "when once the people have transferred their right to a sovereign [i.e., a monarch], they can not, without contradiciton, be supposed to continue still masters of it.2 This is in strict accord with the theory of American republicanism, the peculiarity of which is that the people never do transfer their right of sovereignty, either in whole or in part. They only delegate to their governments the exercise of such of its functions as may be necessary, subject always to their own control, and to reassumption whenever such government fails to fulfill the purposes for which it was instituted.

I think it has already been demonstrated that, in this country, the only political community -- the only independent corporate unit -- through which the people can exercise their sovereignty, is the State. Minor communities -- as those of counties, cities, and towns -- are merely fractional subdivisions of the State; and these do not affect the evidence that there was not such a political community as the "people of the United States in the aggregate."

That the States were severally sovereign and independent when they were united under the Articles of Confederation, is distinctly asserted in those articles, and is admitted even by the extreme partisans of consolidation. Of right, they are still sovereign, unless they have surrendered or been divested of their sovereignty; and those who deny the proposition have been vainly called upon to point out the process by which they have divested themselves, or have been divested of it, otherwise than by usurpation.

Since Webster spoke and Story wrote upon the subject, however, the sovereignty of the States has been vehemently denied, or explained away as only a partial, imperfect, mutilated sovereignty. Paradoxical theories of "divided sovereignty" and "delegated sovereignty" have arisen, to create that "confusion of ideas" to which Judge Story speaks. Confounding the sovereign authority of the people with the delegated powers conferred by them upon their governments, we hear of a Government of the United States "sovereign within its sphere," and of State governments "sovereign in their sphere; of the surrender by the States of part of their sovereignty to the United States, and the like. Now, if there be any one great principle pervading the Federal Constitution, the State Constitutions, the writings of the fathers, the whole American system, as clearly as the sunlight pervades the solar system, it is that no government is sovereign -- that all governments derive their powers from the people, and exercise them in subjection to the will of the people -- not a will expressed in any irregular, lawless, tumultuary manner, but the will of the organized political community. expressed through authorized and legitimate channels. The founders of the American republics never conferred, nor intended to confer, sovereignty upon either their State or Federal Governments.

If, then, the people of the States, in forming a federal Union, surrendered -- or, to use Burlamaquie's term, transferred -- or if they meant to surrender or transfer -- part of their sovereignty, to whom was the transfer made? Not to "the people of the United States in the aggregate"; for there was no such people in existence, and they did not create or constitute such a people by merger of themselves. Not to the Federal Government; for they disclaimed, as a fundamental principle, the sovereignty of any government. There was no such surrender, no such transfer, in whole or in part, expressed or implied. They retained, and intended to retain, their sovereignty in its integrity -- undivided and indivisible.

"But, indeed," says Mr. Motley, "the words 'sovereign' and 'sovereignty' are purely inapplicable to the American system. In the Declaration of Independence the provinces declare themselves 'free and independent States,' but the men of those days knew that the word 'sovereign' was a term of feudal origin. When their connection with a time-honored feudal monarchy was abruptly severed, the word 'sovereign' had no meaning for us."3

If this be true, "the men of those days" had a very extraordinary way of expressing their conviction that the word "had no meaning for us." We have seen that, in the very front of their Articles of Confederation, they set forth the conspicuous declaration that each State retained "its sovereignty, freedom, and independence."

Massachusetts -- the State, I believe, of Mr. Motley's nativity and citizenship -- in her original Constitution, drawn up by "men of those days," made this declaration:

"The people inhabiting the territory formerly called the Province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or state, by the name of The Commonwealth of Massachusetts."

New Hampshire, in her Constitution, as revised in 1792, had identically the same declaration, except as regards the name of the state and the word "State" instead of "Commonwealth."

Mr. Madison, one of the most distinguished of the men of that day and of the advocates of the Constitution, in a speech already once referred to, in the Virginia Convention of 1788, explained that "We, the people of "thirteen SOVEREIGNTIES."4

In the "Federalist," he repeatedly employs the term -- as, for example, when he says: "Do they [the fundamental principles of the Confederation] require that, in the establishment of the Constitution, the States should be regarded as distinct and independent SOVEREIGNS? They are so regarded by the Constitution proposed."5

Alexander Hamilton -- another contemporary authority, no less illustrious -- says, in the "Federalist":

"It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."6

In the same paragraph he uses these terms, "sovereign" and "sovereignty," repeatedly -- always with reference to the States, respectively and severally.

Benjamin Franklin advocated equality of suffrage in the Senate as a means of securing "the sovereignties of the individual States."7 James Wilson, of Pennsylvania, said sovereignty "is in the people before they make a Constitution, and remains in them," and described the people as being "thirteen independent sovereignties."8 Gouverneur Morris, who was, as well as Wilson, one of the warmest advocates in the convention of a strong central government, spoke of the constitution as "a compact," and of the parties to it as "each enjoying sovereign power"9 Roger Sherman, of Connecticut, declared that the Government "was instituted by a number of sovereign States.10 Oliver Ellsworth, of the same State, spoke of the States as "sovereign bodies."11 These were all eminent members of the Convention which formed the Constitution.

There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from thsoe set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States -- and I do not find a single instance in which they applied it to any political organization, except the States.

Their ideas were in entire accord with those of Vattel, who, in his chapter "Of Nations or Sovereign States," writes, "Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state."12

In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says:

"Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the delibertions in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."13

What this celebrated author means here by a person, is explained by a subsequent passage: "The law of nations is the loaw of sovereigns; states free and independent are moral persons."14

[ 1] "Principles du Droit Politique," chap v, section 1; also chap. vii, section 1.
[ 2] Ibid., chap. vii, section 12.
[ 3] "Rebellion Record," vol i, Documents, p. 211
[ 4] Elliot's "Debates," vol iii, p. 114, edition of 1836
[ 5] "Federalist," No. xl.
[ 6] Ibid, No. lxxxi.
[ 7] See Elliots "Debates," vol. v. p. 266.
[ 8] See "Life of Gouverneur Morris," vol iii, p. 193
[ 9] See "Writings of John Adams," vol vii, letter of Roger Sherman.
[10] See Elliot;s "Debates," vol ii, p. 197.
[11] "Law of Nations," Book I, chap i, section 4.
[12] Ibid, section 10.
[13] Ibid, section 12.

SOURCE: Jefferson Davis, The Rise and Fall of the Confederate Government, Vol I, pp. 141-5.


1,660 posted on 10/30/2003 1:08:02 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
Interpreting International Law.

The Supreme Court exercises considerable influence over foreign affairs legislation. The federal judiciary, acting in a quasi-legislative capacity, interprets laws, international law, executive agreements and treaties.16 The Court's authority to construe international law was discussed in The Paquete Habana where the Court stated: "International law is a part of our law and must be ascertained and administered by the courts of justice...."17

[16] L. Henkin, foreign Affairs and the Constitution 216 (1972)
[17] 175 U.S. 677, 700, 20 S.Ct. 290, 299, 44 L.Ed. 320 (1900)

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 207


1,664 posted on 10/30/2003 7:55:42 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
The Treaty-Making Process.

From these provisions a specific treaty making process has developed. Generally the executive appoints and supervises a team of individuals who negotiate the agreement. After a satisfactory agreement is concluded the executive submits the proposed treaty to the Senate. If the treaty is approved by two-thirds of the Senate, the president then signs it and the treaty becomes an agreement binding as an international obligation. 6 Its effectiveness as domestic law depends on its being either self-executory or, if it is executory, there being the required implementing legislation. 7

[6] L. Henkin, foreign Affairs and the Constitution 130 (1972)
[7] See e.g.,/i> Foster v. Neilson, 27 U.S. (2 Pet.) 253, 7 L.Ed. 415 (1829)

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 210


1,665 posted on 10/30/2003 7:58:26 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
Limitations on the Treaty Power

Although there are no express limitations on treaty making in the text of the Constitution the Supreme Court has endeavored to define the scope of the treaty power.

* * *

The Supreme Court addressed this problem in De Geofroy v. Riggs3 where Justice Field in often quoted dicta, discussed the constitutional limitations on the treaty power.

That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear .... The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments.... It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent.... But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is property the subject of negotiation with a foreign country.4

Thus the specific restraints of the Bill of Rights and other similar constitutional restraints do exist. The definitive pronouncement on this constitutional question was made by Justice black's opinion in Reid v. Covert:5

[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution6

Black concluded that Constitutional provisions limit the acts of the President, the joint actions of the President and the Senate, and consequently they limit the treaty power. Given these limitations on the scope of the treaty making power, unless treaties are contrary to the constitution, they are equal in status to congressional legislation, and, as expressly provided in the text of the Constitution, the supreme law of the land.

[3] 133 U.S. 258, 10 S.Ct. 295, 33 L.Ed. 642 (1890)
[4] 133 U.S. azt 266-67, 10 S.Ct. at 296-7.
[5] 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Justice Black announced the judgment for the court; his opinion was joined in by only three other Justices (Warren, C.J., and Doublas and Brennan, JJ.) but none of the other justices, either concurring or dissenting, questioned his analysis of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). There was no opinion for the Court. Justice Whittaker took no part in the case; Justice Frankfurter concurred in a separate opinion; Justice Harlan also concurred in another separate opinion; and Harlan also concurred in another separate opinion; and Justice Clark, joined by Justice Burton, dissented.
[6] 304 U.S. at 16, 77 S.CT. at 1230. See also, De Geofroy v. Riggs, 133 U.S. 258, 267, 10 S.Ct. 295, 297, 33 L.Ed. 642 (1890); Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L.Ed. 523 (1872); The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620-21, 20 L.Ed. 227 (1870; Doe ex dem. Clark v. Braden, 57 U.S. (16 How.) 635, 657, 14 L.Ed. 1090) (1853); New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736, 9 L.Ed. 573 (1836).

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 210-11


1,666 posted on 10/30/2003 8:01:02 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
The President's Power to Terminate Treaties.

For a time, efforts to limit the treaty power focused on the President's authority to terminate treaties. If the Constitution requires a two-thirds vote of the Senate in order to ratify a treaty, the Constitution, it was argued, must also require a two-thirds vote before the President can abrogate a treaty. A fragmented Court rejected this claim in Goldwater v. Carter.21

In that case, several Senators and others sued for declaratory and injunctive relief against President Carter after he announced that he planned to terminate the mutual defense treaty with Taiwan, the Republic of China. The President gave the one year notice which the termination clause of the treaty required. He also recognized the Peoples Republic of China (the Peking Government) rather than the Nationalist Government of China.

The Court, without opinion, granted certiorari and ordered the district court to dismiss the complaint. Justice Rehnquist, joined by Chief Justice Burger and Justices Stevens and Steward, concurred in the judgement and filed a statement concluding that the "basic question presented by the petitioners in this case is political and therefore nonjusticiable because it involves the authority of the President in the conduct of our country's foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President."22

[21] 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979).
[22] 444 U.S. at 1001, 100 U.S. S.Ct. at 536

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 213


1,667 posted on 10/30/2003 8:01:55 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
Conflicts Between Treaties and Acts of Congress.

The Court stated that constitutionally treaties and legislative acts are equal, both being the supreme law of the land. When the treaty and statute:

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.... 3

Acts of congress passed after the date of the treaty, the Court held, control over the treaty terms. Similarly, a self-executing treaty is valid as domestic law and takes precedence over a federal law enacted earlier. In short, the last expression of the sovereign will controls.

In the Chinese Exclusion Case 4 the Supreme Court affirmed the lower court's decision that an act excluding Chinese laborers from the United States was a constitutional exercise of legislative power even though it conflicted with an existing treaty. The court reasoned that because treaties are equivalent to acts of the legislature, they can, like statutes, be repealed or amended.

[3] 124 U.S. 190, 194; 8 S.Ct. 456, 458.
[4] Chae Chan Ping v. United States, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068 (1889)

SOURCE: Constitutional Law, Fourth Edition, John E. Nowak and Ronald D. Rotunda, Hornbook Series, West Publishing Co., 1991, p. 213-4.


1,668 posted on 10/30/2003 8:02:58 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
The constitutional status of treaties.

A treaty negotiated and, with the consent of two thirds of the Senators present, ratified by the President, must "be regarded in courts of justice as equivalent to an act of the legislature"1

[1] Foster v. Neilson, 27 U.S. (2. Pet.) 253, 314 (1829) (Marshall, C.J.). Although the President may, or course, terminate a treaty in accord with its terms, cf. Goldwater v. Carter, 444 U.S. 996 (1979) (refusing to adjudicate validity of treaty termination without Senate consent), discussed in § 3-13 supra, he is not free to treat a treaty as though it meant something entirely different from what it ways, and was presented to the Senate as meaning at the time the Senate was asked to give its consent under art II, § 2. See "Constitutional Principles Constraining the President's Reinterpretation of the ABM Treaty," Testimony of Laurence H. Tribe Before Joint Hearing of the Senate Foreign Relations and Senate Judiciary Committees, 100th Cong. (March 11, 1987)....

SOURCE: American Constitutional Law, 3 Ed., Vol 1, Laurence H. Tribe, Foundation Press, 2000, pp. 643-4.


1,669 posted on 10/30/2003 8:04:01 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
Limitations on the treaty power.

Presidential exercise of the treaty-making power is limited not only by the procedural requirements of Article II, § 2, but also by structural and substantive constitutional restrictions. First, the treaty power is best read as limited to matters involving another signatory nation. Thomas Jefferson, in his Manual of Parliamentary Practice prepared for the United States Senate, wrote that a treaty "must concern the foreign-nation party to the contract, or it would be a mere nullity."14 The Supreme Court, in dictum, has embraced Jefferson's view as a constitutional limitation: A treaty must deal with questions "property the subject of negotiation with a foreign country."15 Even though global interdependence now reaches across an ever broadening spectrum of issues, this limit on the subject matter of treaties remains a meaningful restriction.16

The treaty power is also significantly limited by the panoply of other constitutional restrictions that are independent of the Framers' conception of what constituted a proper topic for treaty-making. Indeed, the notion that structural considerations may limit what the President and Senate may achieve by treaty was the basis of the Court's inquiry in the leading case on the treaty power, Missouri v. Holland. Although the Court held there that no "invisible radiation from the general terms of the Tenth Amendment" prohibited the treaty in question in that case,17 it has long recognized that:

The treaty power ... is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.18

If there were any remaining doubt on the issue whether there is any outer limit to the treaty-making power, that question was closed resoundingly in Reid v. Covert, where a plurality of the supreme Court, in holding American civilian dependents of overseas military personnel entitled to civilian trial, stated that neither a treaty nor an executive agreement "can confer power on the Congress, or on any other branch of government, which is free from restraints of the Constitution."19

[14] See. S.Doc. No. 92-1, 92d Cong., 1st Sess. 435, 516-18 (1971)
[15] De Geofroy v. Riggs, 133 U.S. 258, 267 (1890); cf. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 541 (1885)
[16] It is generally accepted that the Treaty Clause procedure is legitimate only for internaitonal agreements related genuinely, and not just pretextually, to foreign relations. See Restatement (Third) of the Foreign Relations Law of the United States § 302 reporters' note 2 (1986) (noting that the requirement that a treaty be related to foreign relations "may well be implied in the [very] word 'treaty' or 'agreement'"). The President could not, for example, circumvent the House of Representatives by creating a fully operating nationah health care system in the United States by "treaty" with Canada -- although establishment of a joint, binational health care system by a treaty followed by implementing legislation would presumably be possible....
[17] 252 U.S. at 433-34.
[18] De Geofroy v. Riggs, 133 U.S. 258, 267 (1890); see also The Cherokee tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871) (dictum) ("a treaty cannot change the Constitution or be held valid it it be in violation of that instrument"). But cf. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (grant to Indians of rights in reservations within state boundaries held valid.)
[19] 354 U.S. 1, 16 (1957). On this point, the plurality opinion in Reid is widely and properly regarded as authoritative. See, e.g., Boos v. Barry, 485 U.S. 312, 324 (1988).

SOURCE: American Constitutional Law, 3 Ed., Vol 1, Laurence H. Tribe, Foundation Press, 2000, pp. 646-7.


1,670 posted on 10/30/2003 8:05:19 PM PST by nolu chan
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To: capitan_refugio; Gianni; 4ConservativeJustices
When the Articles of confederation were amended, when the new Constitution was substituted in their place and the General Government reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the State government; but the seat of sovereignty -- the source of all those delegated and dependent powers -- was not disturbed. There was a new Government or an amended government -- it is entirely immaterial in which of these lights we consider it -- but no new PEOPLE was created or constituted. The people, in whom alone sovereignty inheres, remained just as they had been before. The only change was in the form, structure, and relations of their governmental agencies.

No doubt, the States -- the people of the States -- if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of convenience. But such a merger must have been distinctly and formally stated, not left to deduction or implication.

Men do not alienate even an estate, without positive and express terms and stipulations. But in this case not only was there no express transfer -- no formal surrender -- of the preexisting sovereignty, but it was expressly provided that nothing should be understood as even delegated -- that everything was reserved, unless granted in express terms. The monstrous conception of the creation of a new people, invested with the whole or a great part of the sovereignty which had previously belonged to the people of each State, has not a syllable to sustain it in the Constitution, but is built up entirely upon the palpable misconstruction of a singleexpression in the preamble.

In denying that there is any such collective unit as the people of the United States in the aggregate, of course I am not to be understood as denying that there is such a political organization as the United States, or that there exists, with large and distinct powers, a Government of the United States; but it is claimed that the Union, as its name implies, is constituted of States. As a British author,1 referring to the old Teutonic system, has expressed the same idea, the States are the integers, the United States the multiple which results from them. The Government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the State governments. The people of each State are, in either case, the source. The only difference is that, in the creation of the State governments, each sovereign acted alone; in that of the Federal Government, they acted in cooperation with the others. Neither the whole nor any part of their sovereignty has been surrendered to either Government.

To whom, in fine, could the States have surrendered their sovereignty? Not to the mass of the people inhabiting the territory possessed by all the States, for there was no such community in existence, and they took no measures for the organization of such a community. If they had intended to do so, the very style, "United States," would have been a palpable misnomer, nor would treason have been defined as levying war against them. Could it have been transferred to the Government of the Union? Clearly not, in accordance with the ideas and principles of those who made the Declaration of Independence, adopted the Articles of Confederation, and established the Constitution of the United States; for in each and all of these the corner-stone is the inherent and inalienable sovereignty of the people. To have transferred sovereignty from the people to a government would have been to have fought the battles of the Revolution in vain -- not for the freedom and independence of the states, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union, and could have found lodgement only when the ebbing tide of patriotism and fraternity had swept away the landmarks which they erected who sought by the compact of union to secure and perpetuate the liberties then possessed. The men who had won at great cost the independence of their respective States were deeply impressed with the value of union, but they could never have consented, like "the base Judean," to fling away the priceless pearl of State sovereignty for any possible alliance.

[1] Sir Francis Palgrave, quoted by Mr. Calhoun, "Congressional Debates," vol. ix, Part 1, p. 541

SOURCE: Jefferson Davis, The Rise and Fall of the Confederate Government, Vol I, pp. 154-6.

1,677 posted on 10/30/2003 10:06:07 PM PST by nolu chan
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