- Published: 08 January 2012
The Constitution is the "supreme Law of the Land." It is controlling as to all officials of the three Branches of the Federal government--Executive, Legislative and Judicial--with regard to all of their pronouncements, actions, decisions, agreements and legislative Acts. Each of them is sworn, by oath of office, to support the Constitution only. To be valid, any treaty must be strictly in conformity to--free from any conflict with--the Constitution. A treaty is like a Federal law in this respect.
The Constitution is supreme over laws and treaties; it expressly states (Article VI, Section 2) that: "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 . . ." This means that any such Law (Act of Congress) which violates the Constitution is automatically made null and void to start with--nullified by the Constitution itself--and therefore cannot be a part of the "supreme Law of the Land." This is also true as to treaties.
The only reason for the special language used in Article VI regarding Treaties was to make it cover those made previously, under the Confederation (notably the Peace Treaty with Great Britain terminating the Revolutionary War), as well as future Treaties. Madison's official record of the Framing Convention's proceedings states that, upon his motion, there was inserted in the Treaty Clause the words "or which shall be made" following the words "all treaties made." Then his record states:
"This insertion was meant to obviate all doubt concerning the force of treaties pre-existing, by making the words 'all treaties made' to refer to them, as the words inserted would refer to future treaties." (In the original, the word pre-existing appears as preexisting.)
The words of Article VI: "under the Authority of the United States" were used regarding Treaties--instead of the words: "in Pursuance thereof" (referring to the Constitution) with regard to laws to be enacted thereafter by Congress--because the prior Treaties could not, of course, be said to have been entered into pursuant to the Constitution because they had been made before the Constitution was framed. The term "the United States" was intended to embrace both the new government and the one existing under the Articles of Confederation which had made the prior Treaties. The intent was that any and every agreement entered into by the new government, including new Treaties, should be pursuant--in conformity--to the Constitution because this government would possess no authority except that granted to it under this instrument. The fact that the above-mentioned, special language was used merely so as to embrace both past and future Treaties was noted, for example, in the 1825 book, A View of the Constitution of the United States of America (pages 59-60), written by William Rawle, a lawyer of Philadelphia who was prominent during President Washington's Administration and was one of his appointees to Federal office.
In the "Camillus" essays--in defense of the Jay Treaty with Great Britain--published by Hamilton and written mostly by him (some by Rufus King, one of The Framers), Hamilton stated in number 37 that the Constitution itself gives ". . . the force of law to treaties, making them equal with the acts of Congress, the supreme law of the land, . . ." This necessarily means they are valid only if not in conflict with the Constitution, as Article VI expressly provides concerning Federal laws. This limitation on these laws (Acts of Congress) is discussed by Hamilton in The Federalist, number 33, as follows:
"Hence we perceive that the clause which declares the supremacy of the laws of the union, . . . only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed." (Emphasis per original.)
This is equally applicable to treaties.
In the Virginia Ratifying Convention, Patrick Henry voiced the fears of many when he took the position that the language of the Treaty Clause was not sufficiently clear in limiting Federal power with regard to treaties. Speaking in the light of his intimate knowledge of the intent of the Framing Convention, Madison refuted this contention, stating:
"Does it follow, because this power is given to Congress, that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire [Union], or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation . . . The object of treaties is the regulation of intercourse with foreign nations, and is external."
The understanding of the Virginia Convention in this connection, in keeping with Madison's statement, was even more specifically expressed by member George Nicholas as follows: "They can, by this, make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers. The treaties they make must be under the authority of the United States, to be within their province." The question of the Treaty Clause being limited by the Constitution as a whole was discussed in the United States House of Representatives on April 6, 1796 concerning the Jay Treaty (with Great Britain), when the point was made by Madison and other members that the record of debates with regard to ratification in the Pennsylvania, Virginia and North Carolina Conventions in 1787-1788 had made it clear that the understanding was "that the Treaty-making power was a limited power" (limited by the Constitution as a whole).
An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments), was provided by a statement by Jefferson--presumably reflecting at the time the prevailing opinion among governmental leaders also and especially leaders in Congress--in his 1801 A Manual of Parliamentary Practice. It was written by him as Vice President, while serving as the presiding officer of the Senate. It was reprinted in many editions in the following generations, being incorporated in full in the "Manual" of the Senate and in the "Manual" of the House of Representatives (as to the part applicable to the particular body in each case). Use of his Manual to some extent continues at the present writing. In this guide, Jefferson stated with regard to the Treaty Clause and power:
[Section 52.] "Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. 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." (Emphasis added.)
This brief review of even a small part of the pertinent, historical evidence is sufficient to make inescapable the conclusion that the Framing and Ratifying Conventions intended the Treaty Clause to be limited by the Constitution; that in order to be valid a treaty, like any Federal law (Act of Congress), must be in strict conformity to the Constitution, as amended. The pertinent evidence supporting this proposition is so conclusive that not to accept it would mean (to use Jefferson's striking phraseology in another connection) that human reason must be surrendered as a vain and useless faculty, given to bewilder and not to guide us. The United States Supreme Court has repeatedly decided that the foregoing conclusion is correct, that the treaty-power under the Treaty Clause is limited by the Constitution as a whole; and the Court most recently confirmed this, upon full consideration, in the 1957 Reid case.
It merits repetition here, for emphasis, that--as observed earlier in this Part II--the Federal government was not intended by the Framing and Ratifying Conventions to be given under the Constitution any implied power of sovereignty, nor any power whatever other than as enumerated in this instrument. This applies, of course, to the Treaty Clause. Any pretense to the contrary violates historical truth. If such a pretense were sound, it would mean that the Federal government was meant to be a government not of definitely limited powers but, instead, of unlimited and indefinable powers; than which nothing could be more violative of the intent of the Framing and Ratifying Conventions.
(b) Executive Agreements
Executive Agreements with foreign governments made by the President alone are, at the minimum, as limited as treaties insofar as concerns the President's power to enter into them being limited by the Constitution; that is, any such agreement must be in strict conformity to the Constitution in order to be valid. The previously quoted statement by Hamilton, in The Federalist number 33, about the supremacy of the Constitution over any Federal law being implied, even if it had not been made express in the Constitution, is as applicable to Executive Agreements as it is to treaties. If they had had occasion to express themselves on the topic, The Framers and Adopters would unquestionably have stressed the strict limits under the Constitution upon any such power of the President alone, even more than with regard to treaties--as to which they required approval by the Senate. The grave danger inherent in allowing any single official, specifically the President, to have the sole power to make international agreements was discussed by Hamilton in The Federalist number 75. He stated, with regard to the power to make treaties: ". . . it would be utterly unsafe and improper to entrust that power to an elective magistrate of four years duration." After discussing in detail the weaknesses of human nature in government and the danger of excessive power to deal with foreign governments being given to one man occupying the Presidency, he continued:
"The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States."
Hamilton further commented that, though it would be "imprudent to confide in him solely so important a trust," his being joined with the Senate in this regard provides reasonably adequate protection of the public interest. The danger involved was highlighted in a statement by Madison (in a letter to Jefferson, 1798) as follows:
"The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government, because they can be concealed or disclosed, or disclosed in such parts and at such times as will best suit particular views . . . Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."
This makes clear the reason why Executive Agreements, entered into with foreign governments by the President alone, are not only potentially dangerous in highest degree but undoubtedly violate the limits imposed by the Constitution upon the power of the Federal government whenever this device (an Executive Agreement) is used to bring into being any international agreement of a type which traditionally would have been considered to require a treaty to be entered into by the President with the advice and consent of the Senate. Under this principle, only Executive Agreements as to very minor matters would be exempted and permitted to the President alone. The danger involved in any one-man power to make agreements with foreign governments is all the more apparent in the light of this truth stated in Washington's Farewell Address (emphasis per original):
"Against the insidious wiles of foreign influence, (I conjure you to believe me fellow citizens) the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government." (Here "Republican" means that of a Republic.)
For the President to resort to an Executive Agreement in order to evade the Constitution's limits on his power in international dealings constitutes usurpation of power and is as offensive from the standpoint of the American philosophy and system of constitutionally limited government as it is according to the principles of sound morality.
The foregoing discussion also makes clear the reasons why certain fallacious statements, which have sometimes been made by supposedly responsible sources, are utterly unsound. An example is the false pretense that a treaty completely and permanently binds the hands of Congress. The truth is that Congress has the power to revoke a treaty at any time, just as Congress has the power to annul one of its own enactments; because Federal laws and treaties are on a par in this respect. As the above-quoted statement by Jefferson notes, treaties are legislative acts; they are on a par with laws. Another fallacious statement is that a treaty "can override the Constitution;" which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty "can cut across the rights given the people by the constitutional Bill of Rights"--than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.
There is no limit to the madness which could be perpetrated by Federal officials in violation of the rights of their masters, the sovereign people, if there were any soundness in this monstrous doctrine--that the Treaty Clause gives these officials unlimited authority so to impose their Will, and even a system of tyrannous Government-over-Man, upon the people regardless of, indeed in defiance of, the Constitution as a whole. So to contend is to deal in nonsense.
(c) Foreign Aid
The Constitution (including its Treaty Clause) was designed to accomplish--as to limiting the powers of the Federal government--what is contemplated with regard to all governments created by the people as their instruments: primarily to make and keep secure their God-given, unalienable rights (and the supporting rights, notably the right to property) according to the Declaration of Independence. It is a violation of this fundamental law of the people for the Federal government to deprive the people of their property by taxation in order to donate to foreign governments, or peoples, the funds thus obtained, or things purchased with these funds--whether or not sanctioned ostensibly by a treaty; that is, except to the extent that this is authorized by the words "common Defence" in the Constitution's Taxing Clause: "provide for the common Defence and general Welfare of the United States." This means that any donation abroad of funds or things, military or any other kind, by the Federal government--in order to be authorized by the Constitution--must contribute substantially and directly to the "common Defence... of the United States," meaning the national defense: the actual, military, physical defense of the American homeland. Under the Constitution as amended, Congress and the President completely lack any power to act the benevolent role abroad with the American people's property--money or any other type. This is true as to all so-called "foreign aid"--whether military, economic or financial--however accomplished: by gift, or loan, or by any other device or method, and whether done openly, or by subterfuge. Individuals may, of course, give such aid out of their own property (money) as they please.
The words "general Welfare" in the Taxing Clause refer expressly to the welfare of the people "of the United States." This excludes the people of any foreign country. The fact that this provision does not give Congress a general legislative power, to provide even for the American people's general welfare in any way Congress sees fit, has been established earlier, citing as one reference The Federalist number 83 by Hamilton. The further fact that this clause grants no power, or authority, to Congress to provide for the welfare of the people of any foreign country--a self-evident truth: that is, one too obvious to need any supporting evidence--was discussed by Madison in the debates in the House of Representatives on January 10, 1794, concerning a proposal to grant funds for the relief of a group of citizens of France--refugees from the French possession, San Domingo--then being given asylum in Baltimore, Maryland, where they had recently arrived and were already being given relief locally. According to the report in a Philadelphia newspaper, Dunlap & Claypoole's American Daily Advertiser of January 14, 1794 (reporting the debate of January 10th), Madison expressed sympathy for the refugees and stated his hope that some way could be devised for their relief other than a grant of financial aid by Congress because, he stated, this would be beyond the authority of Congress under the Constitution. The newspaper's summary of his remarks is, in part:
". . . the government of the United States is a definite government, confined to specified objects--it is not like the state governments whose powers are more general. Charity is no part of the legislative duty of the [Federal] government; it would puzzle him to lay his finger on any part of the constitution which would authorise the government to interpose in this business . . . He concluded his remarks by saying, that tho' he was of opinion that the relief contemplated could not be granted in the way proposed . . ." [because in violation of the Constitution, yet a constitutional way might be found.]
His remarks as reported in another newspaper, The Philadelphia Gazette and Universal Daily Advertiser, of January 14, 1794, were used later as the basis for the official report in the Annals of Congress---due to lack of an official reporter in that period--and were to the same general effect, in part as follows:
"Mr. Madison . . . was afraid of establishing a dangerous precedent, which might hereafter be perverted to the countenance of purposes, very different from those of charity. He acknowledged, for his own part, that he could not undertake to lay his finger on that article in the Federal Constitution, which granted a right to Congress of expending, on objects of benevolence, the money of their constituents. And if once they broke the line laid down before them [in the Constitution], for the direction of their conduct, it was impossible to say, to what lengths they might go, or to what extremities this practice might be carried."
He further commented that the Congress was not like the British Parliament possessing unlimited power to tax and spend for any purpose it might please; then, according to the report, he continued: ". . . this house certainly did not possess an undefined authority correspondent with that of a British Parliament." The plight of the numerous refugees--including many women and children--was so severe, however, that intense sympathy was felt for them. One member, Nicholas, was so affected that he asserted he was willing to vote for the grant of relief, though unconstitutional, and then ask for forgiveness by his constituents for thus violating the Constitution; but the Constitution, and the oath of office to support it (faithfully and unvaryingly), permit no such usurpation of power and allow for no such transgression and forgiveness. Nor does morality, because the end does not justify the means. Note again the previously-quoted warning in Washington's Farewell Address regarding the evil of such a precedent and the fact that usurpation is the "customary weapon by which free governments are destroyed." (See page 182, ante.)
The question of constitutionality of expenditures under the Taxing Clause, for the common defense and general welfare, was discussed by the famous Justice Joseph Story--a long-time member of the United States Supreme Court (1811-1845)--in his celebrated Commentaries on the Constitution of the United States (1833), where he stated in this connection (Section 919):
"A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution. If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles. The power, then, is, under such circumstances, necessarily a qualified power." (Emphasis added.)
The purpose of constitutionally limiting government in America is defeated to the extent that Federal officials fail to respect invariably the limits imposed upon their power by the entire Constitution--including its subordinate (not independent) Treaty Clause--construed in keeping with the original and controlling intent of those who framed and adopted the initial instrument and later each amendment. Sometime support of the Constitution is the equivalent of no support, from the standpoint of this "supreme Law of the Land" as well as of the oath of office and of sound morality.
It merits emphasis that any violation of the Constitution so as to accomplish an unauthorized purpose--for example, granting relief to such foreign refugees being sheltered within the United States, or perhaps within their own country, or by way of aid to any foreign country in any form whatever which is not directly related to the actual military defense of the American homeland, as explained previously--can never alter in the least the constitutional situation with regard to the power granted to Congress. Such an act of usurpation, or even a great number of successive acts of usurpation, can never increase the power of Congress--can never change, or impair, or destroy, the limits on its power as prescribed by the sovereign people in the Constitution. The power of Congress, as so limited, remains unchanged unless and until increased by the people only by amendment of the Constitution. Any act of usurpation produces zero increase in power; and many acts of usurpation still produce zero increase. Many times zero equals zero.
No precedent, no quantity of precedents, by way of actions of government, can alter the Constitution. As Madison remarked in 1831 (letter to N. P. Trist), there was a fallacy prevalent "in confounding a question whether precedents could expound a Constitution, with a question whether they could alter a Const." (Madison's abbreviation.) He correctly concluded, of course, that such precedents could help to expound (clarify), but not to alter, this fundamental law.
RETURN TO AMERICAN IDEAL INDEX PAGE