“CLIMATE CHANGE” TREATY: The Supreme Law Of The Land? Or Lawless Usurpation?
By Publius Huldah.
If Obama signs a “global warming” treaty at the United Nations’ “Climate Change” Conference in Copenhagen this December 2009; and if the U.S. Senate ratifies it, will it become part of the “supreme Law of the Land”?
We hear it said that whenever the President signs, and the Senate ratifies, a Treaty, it becomes part of “the supreme Law of the Land”. But is that true? Not necessarily! Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.
You must always ask: Is this authorized in the Constitution? Where in the Constitution? And precisely what is authorized by the Constitution? Let us start at the beginning:
1. Does the federal government have authority to make treaties? Can treaties be about any subject? Or, are the proper objects of treaties limited by The Constitution?
Article II, §2, cl. 2, U.S. Constitution, says 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…
Article VI, cl. 2 says:
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. [emphasis added]
Thus, we see that the federal government is authorized to make treaties. Now, we must find out whether there are limitations on this treaty making power.
2. It is a classic rule of construction (rules for understanding the objective meaning of writings) that one must give effect to every word and phrase. The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.
So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States”.
3. From where do the President and the Senate get Authority to act? From The Constitution! The objects of their lawful powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”.
If the Constitution does not authorize the President or Congress to act on a subject, any Treaty on such subject would not be “Law” – it would be a mere usurpation, and would deserve to be treated as such (Federalist No. 33, 6th para). Because the Constitution is “fundamental” law (Federalist No. 78, 10th &11th paras), it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. (Federalist No. 78, 9th para).
4. In Federalist Paper No. 44 (7th para from end), James Madison says that [absent the "supremacy clause" at Art. VI, cl.2] a federal treaty which violates a State constitution would have no effect in that State:
…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added]
Madison thus illustrates the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist Papers on this point. So, let us turn to Thomas Jefferson, who says: 1
In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]
Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]
According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]
5. So! We see from the above that the treaty making power of the United States is very limited. What, then, are the proper objects of treaties? To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do. The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, §8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, §8, cl. 11). The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, § 2, cl. 2).
The Federalist Papers discuss the treaty making power of the United States. John Jay says treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd & 6th paras). Madison says treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1st & 3rd paras).
In addition, Art I, §8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Thus, The United States could properly enter into treaties respecting patents and copyrights.
6. Now, let us consider the proposed “climate change” treaty. There is a draft agreement which, during December 2009, is to be put into final form, and signed in Copenhagen. If signed by Obama and ratified by the Senate, would it become part of “the supreme Law of the Land”?
To answer that Question, we must first ask: Does The Constitution authorize Congress to make laws about the objects of the proposed “climate change” treaty? One wants to see the actual text, but it appears that the gist of the scheme is for the governments of the “rich” nations to reduce the “greenhouse gas emissions” within their borders and to send money to the “poor” nations to bribe them to sign the treaty and to compensate them for our “past emissions”. There also seem to be provisions for entrepreneurs like AlGore to sell “carbon offset credits” or “emission reduction units” to those who emit more than “their share” of “greenhouse emissions”. [By the way, from where does AlGore get them to sell?]
And just what, pray, are “greenhouse emissions”? Primarily, carbon dioxide, methane, and water vapor. Carbon dioxide: the gas which humans and other animals exhale, and which plants must have for photosynthesis [sounds like a good system to me]. Methane: The gas which animals belch. All very easy to control: Kill most of the people and most of the animals! Shut down our remaining industries. Stop the cars. Turn off the electricity. Cut off supplies of propane. Prohibit the burning of wood. And water vapor! Oh! We must stop poisoning the world with Water!
So! The Questions are these: Does The Constitution grant to Congress the power to make laws respecting the reduction of carbon dioxide, methane, water vapor, etc. “emissions”? Is transferring wealth from Americans to “poor” nations to compensate them for our “past emissions”, one of the enumerated powers of Congress? Does The Constitution grant to the Executive Branch jurisdiction over carbon dioxide, methane, and water vapor?
The answer is NO! Accordingly, if the Senate were to ratify the “climate change” treaty, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States. It would be a mere usurpation and would deserve to be treated as such.
Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties. It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.
7. Finally: While obama may sign a “climate change” treaty in Copenhagen, ratification requires two thirds of the Senators present (Art. II, §2, cl.2). Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty? But even if 67 faithless Senators vote to ratify it, then we may take heart from the words of James Madison in Federalist No. 44 (16th para):
… in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…
and Alexander Hamilton in Federalist No. 33 (5th para):
…If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify….
Read again the foregoing passages! The statists can not enslave us without our acquiescence. For too long, we have blindly accepted whatever we hear others say. Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!” We are told that “The Rule of Law” requires us to obey every order, law, court opinion, or treaty coming out of the federal government. And not only do we believe such nonsense, we repeat it to others. And thus, we became part of the misinformation dissemination network. In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Learning, Thinking and Analysis. And then, we must learn to say, “They don’t have authority under The Constitution to do that!” Pay attention to the words of our beloved James Madison and Alexander Hamilton. PH
1 I originally obtained these Jefferson quotes from the University of Virginia webpage on Thomas Jefferson. However, they have since reorganized their Jefferson pages, and no longer list quotes there. I will have to find other online scholarly sources to these quotes. Sorry for the inconvenience.
October 27, 2009; revised July 11, 2012