Time: Wed Jul 30 06:43:43 1997
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Date: Wed, 30 Jul 1997 06:27:08 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Abuse of Treaty-making powers (2/3) (fwd)
<snip>
>
> Hamilton, Jefferson, and Calhoun were among those--and
>there are many others--who believed that treaties could not be
>used to alter legal relationships between citizens of the United
>States or between American citizens and their own government.
>That is not the law today. Now treaties are being proposed by
>the United States and its specialized agencies which seek to
>regulate our civil and political liberties, our economic system,
>and, indeed, almost every gamut of human activity.
> 4. Treaties cannot be used to take powers from the
>States and give them to the Federal Government.
> Thomas Jefferson said:
>
>* * * surely the President and the Senate cannot do by treaty
>what the whole Government is interdicted from doing in any way.
>
> Jefferson's interpretation of the Constitution was
>repudiated in Missouri v.Holland (252 U.S. 416 .(1920)). Let me
>say that that decisions was rendered when I was a senior in law
>school and I remember very well the discussion that took place at
>that time in regard to the import of it and the meaning of
>it--and I might say the dangers of the philosophy.
> Senate Joint Resolution 1 would revitalize the four
>safeguards just mentioned and which for more than a century were
>thought to govern treatymaking. Surely no one would contend that
>Presidents were hamstrung, from the administrations of Washington
>to that of Harding; or that the Nation was not fully sovereign
>during that period; or that the Constitution frustrated
>international cooperation from 1789 to 1920. Yet all those
>charges have been leveled against my amendment. Those charges
>will no doubt be repeated in these hearings--and in the debate.
> The fact remains, however, that my amendment would
>merely reimpose the safeguards on treatymaking which were
>actually part of the Constitution for more than a
>century--safeguards which were emasculated in fairly recent
>years.
> The prime legal issue raised by the amendment is simply
>this: Can a treaty or other international agreement override to
>Constitution? Of course, the founder of our Republic never
>dreamed that that could happen. If the treatymaking power is
>unlimited, then as Jefferson observed, "we have no Constitution."
> Nevertheless, no specific provision in the Constitution makes it
>supreme over conflicting treaties. Moreover, the record of the
>Constitutional Convention of 1787 reveal no discussion whatever
>on the question, "Can a treaty of other international agreement
>override the Constitution?"
> The Constitution says that three kinds of law are supreme.
> Article VI, paragraph 2, describes as the supreme law of the
>land:
> 1. The Constitution of the United States;
> 2. Laws of the United States made in pursuance of the
>Constitution; and
> 3. Treaties made, or which shall be made under the authority
>of the United States.
> I emphasize in "2" that laws of the Congress must be in
>pursuance of the Constitution and that treaties under "3" are
>made under the authority of the United States.
> Then article VI goes on to provide that this supreme law of
>the land--all three kinds--shall bind the judges in every State:
>any Thing in the Constitution or Laws of any State to the
>Contrary notwithstanding.
> Article VI, therefore, does not deal with the problem of
>relative supremacy as between the Constitution and treaties.
>Acts of Congress were subordinated to the Constitution by the
>requirement that they be made "in pursuance thereof." That
>phrase could not be used in connection with treaties without
>invalidating treaties made prior to the adoption of the
>Constitution. No provision of the Constitution was more fully
>discussed in the Convention nor the subject of more drafts that
>what finally emerged as paragraph 2 of article VI. All of the
>discussion, however, concerned what kinds of law should be
>binding on the States and how respect for such law should be
>secured.
> I have already mentioned the implied limitations on the
>treaty power which were developed in the last century and
>respected until 1920. Then came the famous case of Missouri v.
>Holland. That case opened the loophole which Senate Joint
>Resolution 1 is designed to plug. To conserve time of this
>Committee, I shall not relate the facts or the background of that
>litigation. I am sure that Judge Orie Phillips, or others of the
>committee of the American Bar, will discuss that case in
>considerable detail.
> In Missouri v. Holland, Mr. Justice Holmes referred to
>article VI providing that laws of the United States in order to
>be the supreme law of the land must be made "in pursuance" of the
>Constitution, while treaties become such supreme law if "made
>under the authority of the United States." Justice Holmes was
>the first judge to assign any legal significance to this
>language. This difference led Holmes to the conclusion that all
>"acts of Congress are the supreme law of the land only when made
>in pursuance of the Constitution," it was open to question
>whether the authority of the United States means "more than
>formal acts prescribed to make the Convention," which are the
>negotiations of treaties by the President and ratification by
>two-thirds of the Senate present and voting.
> And Missouri v. Holland, in turn, led the late Chief Justice
>Hughes to say to the American Society of International Law in
>1929 that he was unwilling to give an opinion that there was any
>implied limitation on the treatymaking power--that that Supreme
>Court had intimated that there was none.
> Next came the decision of the Supreme Court in United States
>v. Courtiss-Wright Corp. (299 U.S. 304), decided in 1936. Mr.
>Justice Sutherland declared that the power to make treaties
>and other international agreements is not derived from the
>Constitution at all, but is an inherent power springing from the
>fact of sovereignty. It is hard to see how a power not bestowed
>by the Constitution can be circumscribed by implied
>constitutional limitations. The dicta in the Curtiss-Wright
>case cannot be dismissed as unimportant. Sutherland's sweeping
>observations have been cited so frequently and favorably by the
>courts and by Government lawyers so to have attained the force
>and dignity of a constitutional landmark.
> In United States v. Pink (315 U.S. 203 (1942)), the Supreme
>Court said that an executive agreement became, like a treaty,
>"the supreme law of the land." The Court held that the executive
>agreement divested creditors of property to which they were
>entitled under New York law. Many lawyers believe that the
>executive agreement involved with the Pink case deprived
>creditors of their property without due process of law. Prof.
>Philip C. Jessup made the following comment on the Pink case, and
>I quote from him in his book:
>
>>From the point of view of our constitutional law, the decision
>may well mark one of the most far-reaching inroads upon the
>protection which it was supposed the Fifth amendment accorded to
>private property (36 American Journal of International Law 282
>(1942)).
>
>
> ~~~Tell me not, in mournful numbers,
> Life is but an empty dream!
> For the soul is dead that slumbers,
> And things are not what they seem.~~~
>
>
>====Jilain can be reached via email at jilain@rt66.com
> or via IRC undernet channel #blackvault====
>
>
>-> Send "subscribe snetnews " to majordomo@world.std.com
>-> Posted by: Jilain <jilain@rt66.com>
>
>
>
========================================================================
Paul Andrew Mitchell : Counselor at Law, federal witness
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