Publius-Huldah's Blog

Understanding the Constitution

Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place.

By Publius Huldah

Central to the silly arguments made by the “Convention of States Project” (COSP) is their claim that 200 years of Supreme Court opinions have increased the powers of the federal government (as well as legalized practices such as abortion); that all these opinions are “the Law of the Land”; and we need an Article V convention so we can get amendments to the Constitution which take away all these powers the Supreme Court gave the federal government.

But the text of Article V contradicts COSP’s claim. Article V shows that our Constitution can be amended only when three fourths of the States ratify proposed amendments. The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.

1. First Principles

Let’s analyze COSP’s silly argument. We begin by looking at First Principles:

♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. 1

♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.2

Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; 3 and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! 4

 

2. Supreme Court Opinions are not “the Law of the Land”

Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!

Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.

So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.

 

3. Organic & statutory law and the totally different “common law” precedent followed in courts

Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation.

Organic Law

Black’s Law Dictionary defines “organic law” as

“The fundamental law, or constitution, of a state or nation, written or unwritten; 5 that law or system of laws or principles which defines and establishes the organization of its government.”

The organic laws of the United States are

  • The Declaration of Independence – 1776
  • Articles of Confederation – 1777
  • Ordinance of 1787: The Northwest Territorial Government
  • Constitution of the United States – 1787

The Articles of Confederation was our first Constitution. It was replaced by our Constitution of 1787 when it was ratified June 21, 1788. The Northwest Ordinance was superseded by the transformation of the area covered by the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].

Do you see how absurd is the claim that the Supreme Court, a mere “creature” of the Constitution of 1787, has the power to change the Organic Law of the United States?

Statute Law

Black’s Law Dictionary defines “statute law” as the

“Body of written laws that have been adopted by the legislative body.”

As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. I, §1). Acts of Congress qualify as part of the “supreme Law of the Land” only when they are made pursuant to Authority granted to Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress are not authorized by the Constitution, they are mere usurpations and must be treated as such.6

Common Law

The “common law” applied in courts in the English-speaking countries came from the Bible.7 The Bible has much to say about our relations with each other: don’t murder people, don’t maim them, don’t steal, don’t bear false witness, don’t tell lies about people, don’t be negligent, don’t cheat or defraud people, and such. The Bible provides for Judges to decide disputes between people and empowers Judges to require the person who has violated these precepts to pay restitution to the person whom he harmed. So, e.g., the Biblical prohibitions against bearing false witness and slandering people became our modern day concepts of slander, libel, and defamation. These principles were applied in the English courts from time immemorial, and are applied in American Courts. Modern day American attorneys litigate these common law concepts all the time. So if I am representing a client in an action for say, fraud, I look at the previous court opinions in the jurisdiction on fraud, and see how the courts in that jurisdiction have defined fraud – i.e., I look for “precedents” – the courts’ previous opinions on the subject – and I expect the Judge on my case to obey that precedent. 8

THIS is the “common law”. It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts. 9 As precedent for judges to follow, it is never “the law of the land”!

So, keep these three categories – organic, statutory, and common law – separate, and do not confuse court precedent with the “Law of the Land”. The latter is restricted to the Organic Law, and statutes and treaties authorized by the Organic Law.

Now let’s look at the constitutional jurisdiction of the federal courts.

 

4. What kinds of cases do federal courts have constitutional authority to hear?

The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. 10

The first category is cases “arising under this Constitution”. In Federalist No. 80 (2nd para), Hamilton shows these cases concern “provisions expressly contained” in the Constitution. He then points to the restrictions on the authority of the State Legislatures [listed at Art. I, §10], and shows that if a State exercises any of those prohibited powers, and the federal government sues the State, the federal courts would have authority to hear the case (3rd & 13th paras).

So if a State enters into a Treaty, or grants Letters of Marque & Reprisal, or issues paper money, or does any of the other things prohibited by Art. I, §10, the controversy would “arise under the Constitution” and the federal courts have constitutional authority to hear the case.

Likewise, if a State passed a law which violated the Constitution – say one requiring candidates in their State for US Senate to be 40 years of age – instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts have constitutional authority to hear the case.

So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it!! 11

Now let’s look at one way the Supreme Court butchered our Constitution in order to strike down State Laws they didn’t like.

 

5. How the Supreme Court violated the “arising under” clause to hear cases they have no constitutional authority to hear

Let’s use “abortion” to illustrate the usurpation. Obviously, “abortion” is not “expressly contained” in the Constitution. So abortion doesn’t “arise under” the Constitution; and the constitutionality of State Statutes prohibiting abortion doesn’t fit into any of the other nine categories of cases federal courts have authority to hear. Accordingly, federal courts have no judicial power over it. The Supreme Court had to butcher words in our Constitution in order to usurp power to legalize abortion. This is what they did:

The original intent of §1 of the 14th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866. That Act protected freed slaves from Southern Black Codes which denied them God-given rights. 12

Now look at §1 where it says, “nor shall any state deprive any person of life, liberty, or property, without due process of law;”

That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes back to the Magna Charta: it means that a person’s life, liberty or property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial.

But this is how the Supreme Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at the word, “liberty” in the due process clause and said, “liberty” means “privacy”, and “privacy” means “a woman can kill her unborn baby”. 13

And they claimed they had jurisdiction to overturn State Laws criminalizing abortion because the issue arises under the Constitution at §1 of the 14th Amendment! [ibid.]

The Supreme Court redefined words in Our Constitution to justify the result they wanted in the case before them.

The Supreme Court didn’t “enforce” the Constitution – they butchered it to fabricate a “constitutional right” to kill unborn babies.

And the lawyers said, “It’s the Law of the Land”; the People yawned; and the clergy said, “the Bible says we have to obey civil government – besides, we don’t want to lose our 501 (c) (3) tax exemption!”

 

6. What are the remedies when the Supreme Court violates the Constitution?

The opinions of which the convention lobby complains constitute violations of our Constitution. 14 The three remedies our Framers provided or advised for judicial violations of our Constitution are:

1. In Federalist No. 81 (8th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution! Impeachment is their “check” on the Judicial Branch.

2. In Federalist No. 78 (6th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution”, determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch.

3. On the Right & Duty of the States – who created the federal government when they ratified the Constitution – to smack down their “creature” when their “creature” violates the Constitutional Compact the States made with each other, see Nullification: The Original Right of Self-Defense.

Endnotes:

1Creature” is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8th Resolution).

2Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.

3 Madison’s Virginia Report of 1799-1800 (pp 190-196).

4 Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. Col. Mason said it is “the basis of free Government” that only the people are competent to ratify the new Constitution, and

“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”

Madison agreed that State Legislatures were incompetent to ratify the proposed Constitution – it would make essential inroads on the existing State Constitutions, and

“…it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence….”

It’s equally novel & dangerous to say that the Supreme Court may change the Constitution under which it holds its existence.

5 It is said England doesn’t have a written constitution.

6 Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:

“…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [capitals are Hamilton’s]

See also Federalist No. 33 (last 2 paras) and Federalist No. 78 (10th para).

7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.

8 Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. Instead, they involve the range of issues people fight about in State Courts: personal injury, breach of contract, business disputes, fighting over property, slander & libel, etc. In deciding these cases, federal judges are expected to follow the “common law” precedents.

9 In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them.

10 In Federalist No. 83 (8th para), Hamilton says:

“…the…authority of the federal …[courts]…is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction…”

11 James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. As to “cases arising under this Constitution”, he said:

“…That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies…”

12 This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment.

13 In Roe v. Wade (1973), the Supreme Court said under Part VIII of their opinion:

“…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…”

14 Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious. But we elect to Congress people who don’t know our Constitution or The Federalist Papers; and they are unaware of their Duty – imposed by their Oath of office – to function as a “check” on the Judicial Branch by impeaching federal judges who violate our Constitution.

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November 25, 2018 Posted by | 14th Amendment, 3000 page constitution, Abortion, annotated constitution, Article V Convention, common law, Convention of States project, Creature of the Compact, due process clause, Enumerated Powers of Federal Courts, federal judges, Judicial Abuse, Law of the Land, Nullification, organic law, precedents, Publius Huldah, Roe v. Wade, statute law, The Judicial Branch | , , , , , , , , , , , , , , , , , , , , , | 8 Comments

WHEN may courts lawfully strike down, under the “supremacy clause”, State laws and provisions in State Constitutions?

By Publius Huldah

The courts have lawful authority under the supremacy clause of the federal Constitution (Art. VI, clause 2) to overturn SOME Amendments to State Constitutions and SOME State laws.

It depends on whether the State provision conflicts with the federal Constitution, or with an Act of Congress which is authorized by the Constitution, or with a Treaty which is authorized by the Constitution.

For example: Say a State law says you have to be 45 years old to run for President. That would conflict with Art. II, Sec. 1, clause 5, US Constitution, which establishes 35 years as the minimum age requirement. State laws can’t contradict the Constitution. So a court could properly strike down the State law which says Presidents must be at least 45 years old.

Do you see? The State Law, or State Constitutional provision, or State judicial opinion must CONTRADICT something in the federal Constitution, or Acts of Congress authorized by the Constitution, or Treaties authorized by the Constitution – before it may lawfully be struck down under the supremacy clause.

THE REASON AMERICANS HAVE SUCH DIFFICULTY UNDERSTANDING THIS IS BECAUSE THEY HAVE NOT GRASPED THE SIMPLE CONCEPT THAT OUR FEDERAL CONSTITUTION CREATED A NATIONAL GOVERNMENT OF “ENUMERATED POWERS” ONLY.

When acts of the national government are authorized by the Constitution, States can not lawfully contradict such acts.

But when acts of the national government are not authorized by the Constitution, then State legislators, officials and judges are obliged by their Oaths of Office to SPIT ON UNCONSTITUTIONAL ACTS OF THE NATIONAL GOVERNMENT.

The KEY QUESTION IS ALWAYS – ALWAYS – ALWAYS – ALWAYS: What provision in the federal Constitution authorizes the national government to act on the issue in question?

Now I ask all of you a question: Can you cite Article, Section, and clause of the federal Constitution which authorizes the national government to meddle in “abortion”, “homosexuality”, or “marriage” over the Country at Large?

Can’t find it? What does that tell you? It should tell you that the national government has no authority to meddle in these three areas. My paper on marriage explained this very clearly, I thought……

So when the national government has no constitutional authority to meddle in an area, they may not lawfully strike down State provisions on these areas.  When they do so anyway, the States and The People must man-up  and resist!

But when the national government has constitutional authority to act in an area, then any State Constitutional provision or State statute in contradiction thereto can properly be struck down under the supremacy clause.

Americans have totally failed to understand that the list of areas in which the national government has constitutional authority to act is…… A VERY SHORT LIST. The list is so short that you all ought to have the list in your heads.  Check it out HERE.

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September 10, 2015 Posted by | Article VI, clause 2, Supremacy clause, Supreme Law of the Land | , , | 24 Comments

The First Amendment does NOT give islamists the right to build mosques, proselytize, and institute sharia here!

Here I rebut the 3 major lies of our time:  Multiculturalism is good; islam is a peaceful “religion”; and the First Amendment gives islamists the “right” to build mosques, proselytize, and institute sharia here.

Let us repudiate the lies; and rebuild the shining city on the hill.

April 7, 2013

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April 7, 2013 Posted by | 1st Amendment, Article VI, Constitution is not a suicide pact, cultural relativism, Declaration of Independence, God-given Rights, Islamization (Islamification), multiculturalism, prevailing dogma, Rights, sharia, shining city on a hill | , , , , , , , , , , , , , , , , | 56 Comments

“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

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

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October 27, 2009 Posted by | Climate Change Treaty, Supreme Law of the Land, Treaty Making Powers of the United States | , | 43 Comments

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, 11th & 12th 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, 10th para).

4.  In Federalist No. 44 (7th 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, 3rd & 6th paras).  Madison says treaties also relate to sending and receiving ambassadors & consuls and to commerce (Federalist No. 42, 1st 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: 2

We conceive the constitutional doctrine to be, that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three [did he mean, “two”?] branches of Legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, 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 to James Monroe, 1796. ME 9:329 [emphasis added]

I was glad… to hear it admitted on all hands, that laws of the United States, subsequent to a treaty, control its operation, and that the Legislature is the only power which can control a treaty. Both points are sound beyond doubt.–Thomas Jefferson to James Madison, 1798. ME 10:41

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 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!” PH

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.  A friend recalls 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 originally obtained these Jefferson quotes from the University of Virginia webpage on Thomas Jefferson.  However, they have since reorganized their Jefferson pages, and I can no longer find the quotes there. I will have to find these quotes somewhere else.

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. PH

September 18, 2009; revised July 11, 2012.

 

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September 19, 2009 Posted by | Climate Change Treaty, Treaty Making Powers of the United States, UN Convention on the Rights of the Child | , | 41 Comments

   

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