By Adam de Angeli View all 4 articles by Adam de Angeli Published 10/29/09 
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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. This December, Barack Obama and other heads of state will meet in Copenhagen to iron out details of an international agreement (i.e., treaty) on climate change. We cannot be sure what will be agreed to, but the plans are daunting enough that one British Lord, Christopher Monckton, speaking in St. Paul declared: I read that treaty. And what it says is this, that a world government is going to be created. The word "government" actually appears as the first of three purposes of the new entity. The second purpose is the transfer of wealth from the countries of the West to third world countries, in satisfication of what is called, coyly, "climate debt" — because we've been burning CO2 and they haven't. We've been screwing up the climate and they haven't. And the third purpose of this new entity, this government, is enforcement... Left-wing media critics will doubtless dismiss these claims as paranoid right-wing fear-mongering; the stuff of Glenn Beck's fantasies. But serious allegations merit serious inquiry, and Monckton's fears are vindicated by the facts. At the asterisk in Monckton's quote above, the source wrote "(sic)", to indicate that an unusal or incorrect statement was produced accurately from the original and not a quotation error. In other words, he thought that when Monckton said, "if your Constitution says that the treaty takes precedence over your Constitution," he was misspeaking himself. He was not. Article VI Section 2 of the Constitution says just that: "treaties made... shall be the supreme law of the land... any thing in the Constitution or laws of any State to the contrary notwithstanding." Consider this for a moment. This clause makes treaties supreme over all Constitutional restrictions. So if a pesky 10th Amendment prevents Congress from passing some law outside of its authority, Congress can use a treaty instead. This is not a hypothetical possibility; this has actually happened! In March 1913, Congress passed the Migratory Bird Act which outlawed their hunting. It was ruled unconstitutional in United State v. Shauver (1914) and United States v. McCullagh (1916) for violating the 10th Amendment. In response, the Senate signed the Migratory Bird Treaty with Britain and Canada, and then passed the Migratory Bird Act of 1918 to enforce the treaty under Article I, Section 8. One of the same judges who had ruled the 1913 Act unconstitutional, hearing an identical case following the treaty, ruled the opposite, saying: "Even in matters of purely local nature, Congress, if the Constitution grants it [via the treaties clause] plenary powers over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states." In Hologram of Liberty (Javelin Press, 1997, www.javelinpress.com), Kenneth Royce notes that not only has the Supreme Court upheld the "supremacy" of treaties, but that the courts have all but directed federal agencies to seek treaty-based power. Writes Royce: Through treaties, Congress could assume police power within the states. A similar case in Missouri (United States v. Samples, 1919) ultimately reached the Supreme Court for an identical conclusion (see Missouri v. Holand, 1920) which stated, "No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power." See also United States v. Selbirk, 1919; United States v. Rockefeller, 1919; and United States v. Lumpkin, 1921. Royce goes on to observe that Balfour, Guthrie, & Co. v. United States (1950) and Sei Fujii v. State (1952) ruled that, the United Nations charter being a treaty, UN Conventions may be enforced on American soil as if American law. Understand this: there is almost nothing they can come up with in Copenhagen that the Supreme Court won't allow under the Constitution. Almost nothing, small consolation though it is. In Reid v. Covert (1956) the Court did rule: "It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitted the United States to exercise power under an international agreement without observing constitutional prohibitions." Comforting words, but misleading: only the most egregious infringements were prohibited by the ruling, including explicit constitutional prohibitions, changes in the character of the government, and the partitioning of a state without its consent. None of the decisions above were reversed by Reid. The courts have very rarely ruled treaty provisions unconstitutional, and challenging Copenhagen enforcement laws would be a long shot. The Supreme Court has used the "necessary and proper" clause to permit all sorts of federal meddling in state and private business, even without treaties. And under the treaties clause, anything the Constitution did not explicitly forbid was fair game by treaty. Almost anything is possible at Copenhagen. If the proposed treaty is any indication, it will test the law to its limit. The only check on its power will be our political resistance to bills that would enforce its provisions. Because the Constitution does allow for "tyranny by treaty," we might wonder: did the Founders not foresee this possibility? As Royce notes, the treaties loophole was not the product of "oversight" on the part of the "imperfect" Founders. Partick Henry warned them clearly, saying this at his June 5, 1788 speech to the Virginia ratifying convention: "The Senate, by making treaties may destroy your liberty and laws for [lack of] responsibility. Two-thirds of those that shall happen to be present can, with the President, make treaties, that shall be the supreme law of the land: They may make the most ruinous treaties; and yet there is no punishment for them. (Because only the Senate may try the President or a Senator! KWR)" (emphasis in Royce) The Federalists were not ignorant of this objection (other anti-Federalists spoke out about this as well), but apparently they were ignorant of human nature. Defending the treaties clause in The Federalist #64, John Jay wrote: It will not be in the power of the President and the Senate to make any treaties by which they and their families and estates will not be equally bound and affect with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter. There is simply no excuse for the elite arrogance Jay displays here. He effectively said that no politician could possibly have private interests or be corrupt, therefore there is no need to check their power—"and you're a nut if you think the President and 2/3 of the Senate would ever vote against liberty!" Yeah, right. Lysander Spooner wrote, "The Constitution has either authorized such a government as we have had, or has been powerless to prevent it." (No Treason, 1870) Spooner was an abolitionist and an entrepreneur whose American Letter Mail Company was shut down by the government in 1851 for interfering with the Postal monopoly. In light of the treaty loophole, we owe it to ourselves to seriously consider why, if the Constitution protects our Liberty, are we struggling today to keep what is left of it? Posing this question to a friend recently, I was told that "no matter what the Constitution says, if we don't fight to defend our rights, they're going to disappear." Well, maybe. But certainly, that was not the understanding presented to the American people upon ratification. Imagine if the Founders had presented the Constitution to the people, and declared, "this document guarantees you nothing, but what rights you must fight to defend over and over again forever." The Constitution wasn't meant to be powerless words on paper. And indeed, when, for example, the Supreme Court ruled in United States v. Miller (1939) that the National Firearms Act did not violate the 2nd Amendment, it did not say "given a lack of activism supporting the Bill of Rights in general and the infrangible right to bear arms in particular, we rule against the Bill of Rights." It said, "in the absence of evidence tending to show that possession or use of a shotgun having a barrel less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia..." that it refused to hold invalid a provision in the National Firearms Act against the transportation of shotguns in interstate commerce. The Constitution does convey a power of its own. All law is derived from the interpretation of the Constitution. The words matter. The point is: if the 2nd Amendment didn't have that unnecessary subordinate clause that could be interpreted to deny the individual's right to keep and bear firearms; if the "necessary and proper" clause was the "absolutely essential and completely proper" clause; if departments created by the Executive Branch had been expressly forbidden from promulgating regulations with force of law; if the Supreme Court's power was checked by the states or the people; if checks on power had been more strict; and so on, we might not be constantly fighting an uphill battle to protect our rights. The Constitution gave the Supreme Court ultimate authority to rule what is and is not constitutional, with no check by the states or the people. Lifetime appointments from the President and Senate are a meager check, if any. With that, very few acts of Congress have been held unconstitutional, and only then by defendants' considerable struggles, and often overturned by subsequent legislation (and treaties, as we have seen.) The government is constrained more by our political resistance than it is by its Constitutional bounds. This was not how the Founding Fathers professed to want things, but this is what we have. I am not advocating a constitutional convention. Given public opinion, we'd be more likely to get a Constitution less amicable to individual rights than the one we have now. But I am warning us to be careful about what we say is and is not constitutional. Because, sadly, much of it is. For a long-term victory over tyranny that is not fleeting enough to be washed away in a generation, we will need to seal loopholes like these. We have quite a movement to build before that is at all possible. The Copenhagen agreement will almost certainly be supported by Barack Obama. Then, Congress will move quickly to pass legislation to enforce it. Let's not let them get away with this globalist power grab politically un-harmed. |
Also by Adam de Angeli:
Net Neutrality Regulation vs. Internet Freedom 09/30/09
The Limits of Protest 09/10/09
Congress Must Audit the Federal Reserve 05/15/09
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