Power to create treaties is established in Article 2 Section 2 Clause 2 of the Constitution. The power to create a treaty is delegated by the people to the President with approval of a two thirds vote of the Senate. The Supremacy Clause then states:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
There is so much misunderstanding regarding treaties, the doctrines of the necessary and proper clause, and the general welfare clause, that when you aggregate this misunderstanding our government is able to reach magnificent proportions of corruption and unconstitutional activity. Our founders were very clear and its time we listen to them instead of Congressmen and Judges who have had no training on the true meaning of the Constitution.
The power to create treaties was vested in the President AND the Senate after the failure of the Articles of Confederation. The Articles of Confederation created a federal government so small that it could not successfully complete the tasks it was delegated to accomplish. James Madison explains in Federalist #45 that the power delegated to the federal government was one of very limited proportions:
“The powers delegated by the proposed Constitution to the federal government are few and defined… (and) will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
Our federal government was designed to be our national representative to the foreign world; a representative of the country in foreign relations. Because we lived in a world where nations where led by Kings, Czars, and Emperors, we needed to have a way that all the states could have a unified voice for negotiations and commerce. During the Articles of Confederation, our federal government could not collect taxes or even compel the delegates to show up to work and do their job. The federal government was attempting to make agreements with foreign nations and was defaulting on these agreements because they had no authority to enforce them equally throughout the states and the states themselves were suffering the greatest consequences. As reported in The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, written December 12, 1787, this very point was addressed.
“It was found that our national character was sinking in the opinion of foreign nations. The Congress could make treaties of commerce, but could not enforce the observance of them. We were suffering from the restrictions of foreign nations, who had shackled our commerce, while we were unable to retaliate: and all now agreed that it would be advantageous to the union to enlarge the powers of Congress; that they should be enabled in the amplest manner to regulate commerce, and to lay and collect duties on the imports throughout the United States.”
So, why were treaties given “supremacy”? The collective decision was made to not only delegate the power of treaties to the President and Senate but to also classify its relevance in enforcement to the states. There was great debate over this issue, as many were concerned that by designating this power, it would elevate the treaties above the very Constitution itself. Fortunate for us, this argument was made, because the rebuttal to this argument is vital in understanding the limitations and scope of treaties. Without these explanations, treaties created by the federal government might justifiably supersede the Constitution. Good thing for us that these treaties, although they may attempt to supplant the Constitution, they are plainly not justified in doing so.
Our founders repeatedly stated that treaties were, for every purpose and application, CONTRACTS, agreements with foreign nations to accomplish the duties obligated in those four delegated powers Madison identified.
“The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.” Federalist #75
Although these Contracts were not considered to be a subdivision of laws or even new laws altogether, it was necessary that they were binding upon the states to prevent the failures seen by our founders in the Articles of Confederation.
“These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it.” Federalist #64
These treaties were not designed to be untouchable. They were subject to the very same checks and balances of every act of the federal government. They could fail if they didn’t meet the proper standards. One way they could fail is if they attempted to infringe upon or utilize a power that had not been granted to them through the Constitution. They were to be bound and fettered by all the limitations of power inherent in the Constitution through the specific delegated powers and the necessary and proper and general welfare clauses. To us, that statement must sound like an oxymoron; to think that the necessary and proper and general welfare clauses were meant to bind Congress. Because we have become so detached from the founders intent, we have allowed these clauses to become an expansion of power, a consequence that our founders thought an abomination. [The explanation of these clauses are a whole other analysis, but for a complete explanation of the intent of the General Welfare Clause, please read my previously written analysis. I promise you will be shocked at the clarity of our founders’ intent.] So, if a treaty attempted to assume a power that was not previously delegated, for instance to bind upon the states agreement for an object outside of the realm of war, peace, or foreign commerce, it would be deemed unconstitutional.
“–I insisted that in givg to the Prest. & Senate a power to make treaties, the constn meant only to authorize them to carry into effect by way of treaty any powers they might constitutionally exercise.” (sic) –Thomas Jefferson: The Anas, 1793.
“By the general power to make treaties, the constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated… It must have meant to except out of these the rights reserved to the states; for 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.
Another limitation imposed by our founders on treaties is that they MUST NOT be in conflict with the Constitution. If a treaty is in direct conflict with, let’s say the Second Amendment, that treaty would be considered unconstitutional. Treaties were established as a supreme law to maintain the credibility and honor of an agreement with a foreign nation, but it was NEVER supposed to be superior to the Constitution. There is no law superior to the Constitution.
“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. “ Federalist #78
But what are we to do when these treaties fail the tests of Constitutional limitations? I have heard it mentioned that we are stuck with these treaties short of another treaty supplanting them or a Constitutional Amendment. This perspective is not consistent with our founders’ explanations. As a matter of fact, our founders wanted us to know that if a treaty was in opposition to the Constitution, there were significant consequences.
“if they [the President & Senate] act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?…As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.” Federalist #64
There is no qualification in that statement that this treaty be replaced or a Constitutional Amendment be written. The simple fact of the matter is this treaty would be a “fraudulent contract” and would be of no effect. At this point, the states would be justified Constitutionally to tell the federal government that they will not honor or enforce the treaty. We do not live in a Kingdom and the power of our government is not derived from a King. We do live in a republic and the power of our government is derived from the people. It is always the responsibility of the PEOPLE to be the ultimate check and balance. I think that Alexander Hamilton made this point abundantly clear in Federalist #33:
“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 they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. .. would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.” Federalist #33
Every day our federal government seems to operate more and more under the assumption that their power is derived in the manner of a Kingdom, it is essential that the people, from which its true power is derived, stand against this tyranny and restore the balance of power. We cannot do this unless we first understand the exceptional principles under which this nation was established. We cannot do this unless we REQUIRE our representatives to operate under these principles.