What did the US Supreme Court actually say in its Majority Opinion in McGirt v. Oklahoma?

By Publius Huldah

Here is the majority opinion in McGirt v. Oklahoma (decided 2020) [link].

The issue on appeal was whether the State of Oklahoma has criminal jurisdiction over the Creek Indians for crimes committed by them on Creek land. The Supreme Court said, “NO!”

The majority opinion lays out a shameful tale of Congress’ practice of breaking treaties with Indian nations; but points out that it [the Supreme Court] has previously held that Congress has the RIGHT to break Treaties with Indians!

The majority opinion recounts how to get the Creek Nation to give up their ancestral lands in Georgia and Alabama, the federal government promised them (in the Treaty of 1832) that they would have a permanent land in Oklahoma which would be theirs for as long as the Creek nation existed and over which they would have complete self-government.

But in the Major Crimes Act of 1885, Congress decided that they would exercise criminal jurisdiction over the Creeks for major crimes committed by them on Creek Land. And since the Supreme Court has said that Congress isn’t bound by the treaties it makes, we are all just fine with Congress’ unilateral change of mind on this point. ¹

So the bottom line of the opinion is that while the federal government has criminal jurisdiction over the Creeks for “major crimes” committed on Creek land; the Oklahoma State government has no criminal jurisdiction over them. ²

Endnotes:

¹ As to Congress’ shameful practice of breaking Treaties with Indian Nations (and the Supreme Court’s approval of that disgraceful practice), consider how God punished the Israelites by sending a 3-year famine because King Saul broke the Treaty Joshua had previously made with the Gibeonites. [See the excellent exposition of this event at gotquestions.org [link]]. So when the leaders of a nation commit public sins and the People go along with it, God punishes the People. See, “The Biblical Foundation of Our Constitution” [link].

² Why should the federal government limit their wrongdoing to the Indians? Why not do it to all of us? And they did! E.g., when they passed the Federal Reserve Act of 1913, they promised that Federal Reserve Notes (FRNs) would be redeemable in gold. Then, the federal government changed their mind and for some 90 years, Americans haven’t been able to redeem FRN’s with gold. See more about the shenanigans respecting the Federal Reserve in “So you think Trump wants to get rid of the fed?” [link].

The USMCA “Trade Agreement” violates our Constitution and sets up Global Government

By Publius Huldah

On November 30, 2018, President Trump, along with the Prime Minister of Canada and the President of Mexico, signed the United States-Mexico-Canada (USMCA) “Trade” Agreement. “Trade” is in quotes, because the document isn’t about “trade” – it’s about setting up global government.

The USMCA Trade Agreement was negotiated by U.S. Trade Representative, Robert Lighthizer. He is a member of the Council on Foreign Relations, which works to move the United States into the North American Union (NAU). ¹

The USMCA Agreement advances the economic and regulatory integration of the three Parties. It is the precursor to the political integration the globalists seek with the NAU. ²

1. Summary of objections to the USMCA Agreement

Our Constitution and Declaration of Independence are the “organic law” of our Land. ³ Treaties (and other Agreements made with foreign nations or global governmental organizations), like Acts of Congress, hold a lesser status: they are part of “the supreme Law of the Land” only when they are authorized by “organic law” – our Constitution (Art. VI, cl.2). ⁴

While the United States is clearly authorized by Art. I, §8, cl. 3 & Art. II, §2, cl. 2, US Constit., to enter into Treaties with foreign Nations addressing Commerce; ⁵ the United States may not lawfully transfer to global or multi-national bodies, powers which “WE THE PEOPLE” delegated to our federal government when We ratified our Constitution. But that is what the USMCA Agreement purports to do.

Even worse, the USMCA Agreement also purports to delegate to global or multi-national bodies powers which We never delegated to our federal government – but reserved to the States or the people.

The USMCA Agreement establishes a bureaucratic multi-national government which is to control all aspects of commerce and to which the United States, Mexico and Canada will be subject.

The USMCA Agreement incorporates by reference many other documents. Its frequent use of new terminology requires one to constantly refer to the various definition sections spread throughout the 34 Chapters. It engages in the pernicious practice of making a statement, and then qualifying it by phrases such as, “unless otherwise provided in this Agreement” and “unless the Parties decide otherwise”. ⁶

2. Powers We delegated to our federal government

When the People of the United States ratified our Constitution, We “created” the federal government. Article I created the Legislative Branch and itemized its powers. Article II created the Executive Branch and itemized its powers. Article III created the Judicial Branch and itemized its powers. Each Branch of the federal government is thus a “creature” of the Constitution and is completely subject to its terms. None of the delegated powers may lawfully be re-delegated to global or multi-national bodies.

The USMCA Agreement violates the following provisions of our Constitution:

♦ At Art. I, §1, We vested in Congress, all legislative Powers granted by our Constitution.

♦ At Art. I, §8, We granted to Congress the powers

o Clause 1: To lay and collect Imposts (import tariffs)

o Clause 3: To regulate Commerce with foreign Nations

o Clause 5: To coin Money and regulate the Value thereof

o Clause 8: To issue Patents and Copyrights

♦ At Art. I, §9, cl. 1: Commencing January 1, 1808, We granted to Congress the power to control Migration (immigration) to the United States.

♦ At Art. II, §2, cl. 2, We granted to the President the power to make Treaties, provided two thirds of the Senators present concur.

♦ At Art. III, §2, cl. 1, We declared that the judicial Power of the United States shall extend

o to all Cases arising under Treaties made under the Authority of the United States

o to Controversies to which the United States shall be a Party

♦ At Art. IV, §4, We imposed upon the United States the duties to:

o guarantee to every State in this Union a Republican Form of Government; and

o protect each of the States against Invasion.

♦ At Art. VI, cl. 2, We declared that our Constitution, and Acts of Congress and Treaties authorized by the Constitution, is the “supreme Law of the Land”.

♦ In the 10^th Amendment, We declared that powers not delegated to the United States by the Constitution are reserved to the States or to the people.

Art. I, §8, cl. 1 – to “lay and collect Imposts”

Our Constitution delegates to Congress the power to set the amounts of the tariffs on foreign imports.

The USMCA Agreement divests Congress of the power to unilaterally determine our tariffs. USMCA Art. 2.4 ⁷ says:

“1. Unless otherwise provided in this Agreement, no Party shall increase any existing customs duty, or adopt any new customs duty, on an originating good.

2. Unless otherwise provided in this Agreement, each Party shall apply a customs duty on an originating good in accordance with its Schedule to Annex 2-B (Tariff Commitments)”.

Art. I, §8, cl. 5 – to coin Money and regulate the Value thereof

Our Constitution delegates to Congress the power to control our money.⁸

But with the Federal Reserve Act of 1913, Congress and Woodrow Wilson unlawfully transferred power over our money to an international cabal of privately owned banks – the “Federal Reserve”.

Shortly after WWII, the United States joined the World Bank and the International Monetary Fund (IMF). ⁹ James Perloff’s article, Council On Foreign Relations – Influencing American Government, speaks of how the World Bank and IMF act as

“…a loan-guarantee scheme for multinational banks. When a loan to a foreign country goes awry, the World Bank and IMF step in with taxpayer money, ensuring that the private banks continue to receive interest payments. Furthermore, the World Bank and IMF dictate conditions to the countries receiving bailouts, thus giving the bankers a measure of political control over indebted nations.”

The USMCA Agreement surrenders the United States’ power over money and our economy to the IMF. USMCA Art. 33.1 defines “Article IV Staff Report” as the report prepared by the IMF respecting a country’s adherence to Art. IV, Section 3 (b) of the IMF Articles of Agreement. Section 3 provides that the IMF shall oversee the compliance of each member with its obligations under Section 1 of Article IV. Section 1 requires each member to “direct its economic and financial policies toward the objective of fostering orderly economic growth with reasonable price stability”, and to foster “orderly underlying economic and financial conditions and a monetary system that does not tend to produce erratic disruptions” [i.e., our economy is to be planned by the IMF].

Article IV, §3 (b) of the IMF Articles of Agreement states that the IMF “shall exercise firm surveillance over the exchange rate policies of members”, and “shall adopt specific principles for the guidance of all members with respect to those policies”. USMCA Art. 33.4 confirms that the three Countries are “bound under the IMF Articles of Agreement to avoid manipulating exchange rates or the international monetary system”; but private manipulators (George Soros) don’t seem to be bound by that restriction.

USMCA Art. 33.6 establishes a Macroeconomic Committee which “shall monitor the implementation of this Chapter and its further elaboration.” Paragraph 5 of Art. 33.6 empowers the Committee to amend and issue “interpretations” of Chapter 33; and declares that such interpretations “shall be deemed to be an interpretation issued pursuant to a decision by consensus of the Commission.” USMCA Art. 1.4 defines “Commission” as “the Free Trade Commission” established under USMCA Art. 30.1.

Art. I, §8, cl. 8 – to issue Patents and Copyrights

The purpose of delegating the power to issue Patents and Copyrights to Congress is 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”.

The USMCA Agreement subordinates these property rights to the collective. USMCA Art. 20.2 states:

“The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

Article 20.3 prohibits the Parties from making any laws or regulations inconsistent with Chapter 20; and requires that any measures to protect property rights be “consistent with the provisions of this Chapter”. The Parties are “to prevent the abuse of intellectual property rights by right holders”. Article 20.5 requires each Party to ensure “that measures to enforce intellectual property rights do not themselves become barriers to legitimate trade” or “contravene this Chapter”.

Article 20.7 requires the Parties to ratify or accede to a long list of international “agreements” including the World International Property Organization’s (WIPO) Patent Law Treaty. The WIPO is an agency of the United Nations.

The 64 pages of Chapter 20 have nothing to do with protection of property rights in Inventors. Instead, Chapter 20 subordinates ownership of those rights to the collective; and establishes the framework for global government of patents and copyrights. ¹⁰

Art. I, §9, cl.1 grants to Congress power over Migration;

Art. IV, §4 requires the United States to protect each of the States against Invasion;

and Art. I, §8, cl. 15 authorizes the use of the Militia to repel invasions

Our Framers understood that control over who enters our Country is an essential element of sovereignty.

But the USMCA Agreement subordinates the United States’ sovereign power over immigration to global and multi-national bodies. USMCA Art. 16.2 declares:

“3. Nothing in this Agreement prevents a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.” [italics added]

Article 16.8 declares:

“Except for this Chapter, Chapter 1 (Initial Provisions and General Definitions), Chapter 30 (Administrative and Institutional Provisions), Chapter 31 (Dispute Settlement), Chapter 34 (Final Provisions), Article 29.2 (Publication), and Article 29.3 (Administrative Proceedings), this Agreement does not impose an obligation on a Party regarding its immigration measures.” [italics added] ¹¹

USMCA Art. 23.1 cites the International Labor Organization’s (ILO) “Declaration on Fundamental Principles and Rights at Work” (1998), as guiding the treatment of labor issues under the Treaty. The ILO is an agency of the United Nations (UN); and part of the ILO’s “social justice” agenda is to formulate “fair migration schemes in regional integration processes”.

So this is how the UN is to dictate immigration policy for the “regional integration” of Canada, the United States and Mexico.

Art. II, §2, cl. 2, grants to the President the power to make Treaties,

provided two-thirds of the Senators present concur

Chapter 30 of the USMCA Agreement establishes the Free Trade Commission. It is the governing body of the bureaucracy which is created by the Agreement.  Among other powers, the Commission supervises the work of all committees and other subsidiary bodies established under the Agreement; has the power to merge or dissolve committees and other subsidiary bodies; and has the power to “consider” proposals to amend or modify the Agreement. While Art. 30.2, 2. (c) lists six areas where modifications of the Agreement are subject to completion of “applicable legal procedures by each Party”, it does not require that other types of modifications of the Agreement be subject to such approval of the Parties.

And while USMCA Art. 34.3, 1. provides, “The Parties may agree, in writing, to amend this Agreement”, it doesn’t say that is the exclusive means of amendment. Accordingly, we must consider Art. 34.3 as providing an additional means of amendment.

USMCA Article 30.2, 2. (f) grants to the Commission power to “issue interpretations” of the Treaty; and the footnote thereto says that its interpretations “are binding for tribunals and panels established under Chapter 14 (Investment) and Chapter 31 (Dispute Settlement).”

And since, as noted above, the “interpretations” of Ch. 33 issued by the Macroeconomic Committee are considered as “interpretations” issued by the Free Trade Commission, the “interpretations” of the Macroeconomic Committee will also be binding on the tribunals deciding disputes between the Parties.

We thus permit the “creature” of the Agreement to modify the document under which it holds its existence!¹²

Art. III, §2, cl. 1, grants to U.S. Courts the Power to decide all Cases arising under Treaties &

all Controversies to which the United States is a Party.

In violation of our Constitution, the USMCA Agreement restricts the Parties to the dispute settlement procedures laid out in the Agreement.

Chapter 31 of the USMCA Agreement addresses resolution of disputes involving violations of the Agreement or “interpretations” of the Agreement issued (or “deemed to be issued”) by the Free Trade Commission. Disputes are heard by a panel of five drawn from a roster of up to 30 individuals appointed by the Parties. The panel is to make findings of fact and determinations and issue a report. If the disputing Parties don’t agree on the report, the complaining Party may suspend various benefits held by the responding Party under the Agreement.

Article 31.3 limits the Parties’ choice of a forum for dispute resolution to that set forth in the Agreement or in another international trade agreement to which the disputing Parties are signatories.

Article 31.20 permits a Party to intervene in proceedings already pending in a domestic judicial or administrative forum which involve the interpretation or application of the Agreement. The purpose of such intervention is to inform the domestic tribunal of the “interpretations” of the Agreement issued (or “deemed to be issued”) by the Free Trade Commission. Thus, the “interpretations” of the Agreement issued by the “creature” of the Agreement are to be foisted on our domestic courts and administrative law judges!

Note that Art. 31.21 expressly forbids a Party from making a law which grants a right of action against another Party on the ground that a measure of the other Party is inconsistent with the Agreement.

3. Powers reserved by the States or the People which the Agreement transfers to global organizations

Our Constitution is one of enumerated powers only. Most of the powers delegated to the federal government over the Country at large are listed within Art. I, §8. See this Chart.

Labor

We did not delegate to our federal government power over labor issues. However, beginning in the early 1900s, we permitted our federal government to exercise, by usurpation, powers over labor issues.¹³ As a result, we got the federal Department of Labor, a host of Acts of Congress addressing labor issues, and a plethora of Rules issued by the Department and published in Title 29 of the Code of Federal Regulations. The Department, its Rules, and the Acts of Congress are unconstitutional as outside the scope of powers delegated. The Rules are also unconstitutional as in violation of Art. I, §1, US Constit.

Chapter 23 of the Agreement transfers those usurped powers to the United Nation’s International Labor Organization (ILO).

Article 23.1 defines “labor laws” as the statutes and regulations of a Party that are directly related to “internationally recognized labor rights” such as the “right” to collective bargaining; and which require Parties to make laws to provide wage-related benefits payments for workers such as profit sharing, bonuses, retirement, and healthcare.

Here are some of the dictates set forth in the Agreement with which US laws and agency rules must comply:

♦ At Art. 23.2, the Parties affirm their obligations stated in the ILO’s Declaration on Rights at Work and Declaration on Social Justice for a Fair Globalization (2008).

♦ Article 23.3 dictates that “Each Party shall adopt and maintain in its statutes and regulations, and practices thereunder,” various rights, as stated in the ILO’s Declaration on Rights at Work; and “Each Party shall adopt and maintain statutes and regulations, and practices thereunder, governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.”

♦ Article 23.5 requires each Party to “effectively enforce its labor laws”.

♦ Article 23.9 requires each Party to implement policies to protect workers against employment discrimination on the basis of sex, pregnancy, sexual orientation, gender identity, and caregiving responsibilities; and to provide job-protected leave for birth or adoption of a child and care of family members; and to protect against wage discrimination.¹⁴

Additional Reserved Powers transferred to global or multi-national bodies

The USMCA Agreement is long and complex: see the Table of Contents. Here are brief comments on some of the other powers reserved by the States or the People which are unlawfully transferred by the Agreement:

Chapter 19 addresses digital trade. Article 19.5 requires each Party to maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996. That model law is a product of the United Nations Commission on International Trade Law.

Chapter 21 addresses competition policy. Article 21.1 requires each Party to maintain and enforce “national competition laws” which proscribe “anticompetitive business conduct”. The Parties are to apply those laws to “all commercial activities in its territory.” Article 21.4 requires each Party to adopt or maintain national consumer protection laws or regulations that proscribe fraudulent and deceptive commercial activities.

Chapter 24 addresses environmental laws. Article 24.3 requires each Party to ensure that its laws provide for high levels of environmental protection. Article 24.4 requires each Party to enforce its environmental laws. Article 24.9 requires each Party to control the production and use of substances which deplete or change the ozone layer [and on & on for 30 pages].

4. The Death of the Republican Form of Government

In a “republic”, the sovereign power is exercised by representatives elected by the People.

Article IV, §4, US Constit., requires the United States to guarantee to every State in this Union a Republican Form of Government.

But the USMCA Treaty, time after time, delegates the exercise of sovereign power to various panels, Committees, Commissions, UN organizations, and others – not one of which is elected by the People.

5. Don’t fall for the carrot dangled in your face!

The USMCA Agreement reportedly contains some tariff benefits to various industries in the United States such as the auto and dairy industries. Their profits (at least for a while) should increase as a result of the Agreement. And for that, We are to surrender our sovereignty to the globalists?!

6. The 1815 Free Trade Treaty between the United States and Great Britain

On Dec. 6, 1815, President James Madison sent this treaty to the Senate for ratification. It is two pages long. Unlike the USMCA Agreement, it doesn’t set up a government over the United States and Great Britain—thus proving that trade Agreements need not surrender our sovereignty. And Madison’s treaty doesn’t require a lawyer skilled in sniffing out dirty tricks to understand what it does.

7. Conclusion

In Federalist No. 22 (last para), Alexander Hamilton said that one of the problems with the Articles of Confederation (AOC), our first Constitution, was that it was never ratified by the PEOPLE. Because the only foundation for the AOC was the consent of state legislatures, questions had arisen concerning its validity.

This is why Art. VII of our second Constitution (the one we have now) provides for its ratification by Conventions held in each of the States. In support of the ratification method set forth in Art. VII, Hamilton wrote:

“…The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” [caps are Hamilton’s].

This is why our Constitution begins with, “WE THE PEOPLE”. WE consented to it.

But the USMCA Agreement sets up global government over the economic issues covered by the Agreement. It is NOT to be submitted to THE PEOPLE for their consent. The globalists who infest our Legislative and Executive Branches (the latter of which, as the Perloff article points out, has been dominated by the Council on Foreign Relations for over 70 years) want the Agreement ratified by a simple majority vote in Congress. ¹⁵

The USMCA Agreement is illegitimate; and the global government it imposes is tyrannical.

Endnotes:

¹ Here is the Council on Foreign Relations’ Task Force Report on the NAU.

² The US Constitution is unique. It is (1) a written Constitution (2) which created the federal government; (3) listed the handful of powers granted to the federal government; and (4) has as its Foundation the Consent of The People. As our “Organic Law”, it is the standard by which the lawfulness of legislative Acts and Treaties is measured. Its existence undermines the political integration of Canada, Mexico, and the United States. That’s why the globalists want an Article V convention – to get a new constitution for the US which won’t stymie their plans.

³ “Organic law” is “the fundamental law, or constitution, of a state or nation…”

⁴ On the lesser status of treaties in relation to our Constitution: The objects on which the United States may enter into treaties are restricted to the enumerated powers delegated to the federal government – see authorities cited in this paper. On the lesser status of Acts of Congress: Federalist No. 78 (11^th & 12^th paras) says that when an Act of Congress violates the Constitution, “the Constitution ought to be preferred to the statute”; judges “ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

⁵ See authorities quoted here.

⁶ The USMCA Agreement is long, intricate, and tricky. This paper addresses only parts of it. We are insane to allow international agreements “… so voluminous that they cannot be read, or so incoherent that they cannot be understood…” Federalist No. 62 (4^th para from end).

⁷ To get an idea of the extent of the regulations on custom duties, skim all 72 pages of Chapter 2.

⁸ And our money is to be based on gold & silver (Art. I, §10, cl. 1). In Federalist No. 10 (next to last para), Madison warns against “A rage for paper money…or for any other improper or wicked project…”.

⁹ Perloff says the initial planning for the World Bank & IMF was by the Council on Foreign Relations.

¹⁰ Ayn Rand warned 60 years ago in Atlas Shrugged that if we didn’t change course, our Inventors and Authors would lose their property rights.

¹¹ They left out Chapter 17, which addresses cross-border financial services. Art. 17.5, 1. (d) (iv) declares:

“No Party shall adopt or maintain… a measure that…imposes a limitation on… the total number of natural persons … that a … cross-border financial service supplier may employ and who are necessary for, and directly related to, the supply of a specific financial service…”

¹² To allow the “creature” of a treaty to modify the treaty under which it holds its existence violates the Fundamental Principle of free government. See this paper under subheading 1 and its endnotes.

¹³ Our Framers said that if we want the fed. gov’t to have a power the Constitution doesn’t grant, we should amend the Constitution to delegate the additional power – we must not permit it to exercise the power by usurpation. See this paper under the subheading, “Washington’s Farewell Address”.

¹⁴ The footnote to USMCA Art. 23.9 says the United States’ existing policies regarding the hiring of federal workers is sufficient to fulfill the obligations set forth in Art. 23.9. We can be sure that the requirements of Art. 23.9 will later be extended to all employment in the United States.

¹⁵ Twelve Republican US Senators, by letter of Nov. 20, 2018, urged Trump to send the USMCA Agreement right away so it could be passed by the lame duck session of Congress by a simple majority vote.

edited Nov. 22, 2021

“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, 10^th &11^th 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, 9^th para).

4.  In Federalist Paper No. 44 (7^th 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, 3^rd & 6^th paras).  Madison says treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1^st & 3^rd 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 (16^th 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 (5^th 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

Endnote:

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

Treaties: WHEN are they part of “the supreme Law of the Land”?

By Publius Huldah

If the U.S. Senate ratifies the U.N. Convention on the Rights of the Child, will it become part of the supreme Law of the Land?   If the Senate ratifies the “cap and trade” climate change treaty, will that become part of the supreme Law of the Land?

We hear it said that whenever 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 exactly in the Constitution? And precisely what is authorized by the Constitution?

1.  Does the federal government have authority to make treaties?  Can treaties be about any object? 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 texts) ¹ 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 an object before any Treaty made by them on that object qualifies as part of “the supreme Law of the Land”.  If the Constitution does not authorize the President and Congress to act on an object, the Treaty is not “Law” – it is a mere usurpation, and deserves to be treated as such. (Federalist Paper No. 33, last para).

Because the Constitution is “fundamental” law (Federalist No. 78, 11^th & 12^th paras), it is The Standard by which the legitimacy of all Presidential Acts, all Acts of Congress, all Treaties, and all Judicial Decisions is measured (Federalist No. 78, 10^th para).

4.  In Federalist No. 44 (7^th para from end), James Madison explains why it is necessary that Art. VI, cl. 2, provide that federal treaties have supremacy over State Constitutions.  Otherwise, a 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 wrote: ²

“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!  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 authors of The Federalist Papers address 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, 3^rd & 6^th paras).  Madison says treaties also relate to sending and receiving ambassadors & consuls and to commerce (Federalist No. 42, 1^st four paras).

There may be additional objects of the treaty making power authorized in The Constitution.  For example, 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 & copyrights. ³

6. Let’s look now at the proposed U.N. Convention on the Rights of the Child.  If ratified by the Senate, would it become part of “the supreme Law of the Land”?

To answer that Question, we must ask:  Does the Constitution grant to Congress the power to make laws respecting “children”?  Does the Constitution grant to the Executive Branch jurisdiction over “children”?

The answer to both questions is “NO!”  In addition, the 10th Amendment says if a power is not delegated to the United States by the Constitution, or prohibited to the States by Art. I, §10, it is reserved to the States or the people.  Thus, jurisdiction over “children” is reserved to the States or the people!  Accordingly, if the Senate were to ratify the U.N. Convention on the Rights of the Child, the treaty would NOT become part of “the supreme Law of the 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.

If the Senate were to ratify the cap-and-trade “climate” treaty, which, among other things, would force energy companies to buy allowances or permits for their “carbon emissions”, would it become part of “the supreme law of the Land”?  You are now equipped to find the answer, and you can confidently defend it!

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, Thomas Jefferson points to a legislative remedy if the President and the Senate ignore the constitutional limits on the treaty making power of the United States. Thomas Jefferson says:

“…We conceive the constitutional doctrine to be, that tho’ the P. & Senate have the general power of making treaties yet whenever they include in a treaty matters confided by the constitution to the three [sic] branches of legislature, an act of legislation will be requisite to confirm these articles, and that the H. of Repr. as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not….” –Thomas Jefferson’s letter of March 21, 1796 to James Monroe [emphasis added] ⁴

“…I was glad … to hear it admitted on all hands, that laws of the U S, subsequent to a treaty, controul it’s operation, and that the legislature is the only power which can controul a treaty. Both points are sound beyond doubt.,,,” Thomas Jefferson’s letter of May 31, 1798 to James Madison. ⁵

What a man! And our system of checks & balances is an elegant one, indeed!

8.  Folks!  For too long, we have blindly accepted whatever we hear others say.  Someone on TV or the Internet says, “If the Senate ratifies this treaty, it will become part of the supreme Law of the Land!”  And not only do we believe it, 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 how to think and analyze. And then, we must boldly say, “They don’t have authority under The Constitution to do that!”

Endnotes:

¹ Educators no longer teach “rules of construction”, because it has become the dogma of our time that texts have no “objective meaning” to be discovered.  Instead, each person is to come up with his own “understanding” – and one person’s “understanding” is as good as another’s.  Someone recalled the following incident which occurred in his high school English class during 1960:  The class read a short story, and then the teacher asked each student to say what the story meant to him.  Whatever a student said was praised by the teacher.  But when it was my friend’s turn, he said:  “It doesn’t matter what it means to me – what matters is what the author meant.”  The teacher was not pleased with this ‘out of place’ comment.  Is it any wonder many judges feel free to “understand” the Constitution any way they please?  They were conditioned in school to “think” this way; and they did not resist the conditioning.

² I copied these quotes from another site – but as you see, they don’t link to original source documents. As I find time [ha!], I’ll look for the original source documents.

³ It has been said that Charles Dickens’ works were pirated, printed and sold in these United States without paying any royalties to Dickens!  A copyright treaty with Great Britain would have discouraged this theft of Dickens’ intellectual property.

⁴ Jefferson’s letter to James Monroe is HERE, at pages 229-230.

⁵ Jefferson’s letter to James Madison is HERE, at pages 427-429 [same book as above]

September 18, 2009; revised July 11, 2012; October 8, 2019.