Article VI, Clause 2 of the U.S. Constitution 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
It is, I believe, a principle in law that if two acts (of the same weight) touch on the same subject that the latter of the two takes precedence over the earlier.
I am wondering if a treaty, properly ratified under the Constitution, would, if it conflicted with a clause of the Constitution, become the “supreme Law of the Land” in preference to the Constitution.
Suppose, for instance, that we ratified a treaty with another nation that jaywalkers in our respective capitals are henceforth to be punished by being drawn and quartered. This treaty specifically bypasses any restraint on the ability of each nation to administer cruel and unusual punishments. Would this treaty hold up as legitimate or be struck down as a violation of the Eighth Amendment?
I am looking, specifically, for any precedents or reasonably close approximations thereto.
I am not looking for arguments on the advisability/morality/ethicality of such an end run around the Constitution, or of the specific hypothetical it involves.
I searched the board, but could not find an answer (but did find some interesting threads).
IANA Constitutional L (or any kind of lawyer for that matter) but I merely interpret that to mean that states can’t opt out of any laws or treaties made by the US Federal Gov’t.
If the US signs a treaty with Outer Plutonia allowing Outer Plutonians to enter the US without visas and vice versa, then Georgia can’t suddenly decide they don’t want to have nothing to with Outer Plutonians and make a state law requiring OP’s to get visas before entering the state of Georgia.
That’s an absurd example, but hopefully you get the point I’m trying to make.
The OP is quoting what is known as The Supremacy Clause. And it basically means, the Federal Government is the top and the states have to follow along. Treaties are mentioned because they are considered part of Federal law.
So far, no one has ever successfully challenged a treaty that the United States is a signatory to in Federal Court. I suppose, in theory, if a treaty had a section that was unconstitutional, the Supreme Court would invalidate the treaty (i.e., no longer make the United States a signatory to it). It’s just like declaring a law unconstitutional.
This is not to say that Constitutional scholars have argued over this before. Just look for commentary on Article 2, Section 2.
Remember also that the Senate has to advise and consent to any treaty (by 2/3 vote also).
Well, the treaty could certainly be ratified in accordance with the process set forth in the Constitution. It would then be up to the courts to decide whether the treaty conflicted with the other provisions of the Constitution. It’s not the role of Congress to determine constitutionality.
In State of Missouri v. Holland, 252 U.S. 416 (1920), Missouri challenged the Migratory Bird Treaty Act of 1918, which prohibited the cathcing killing, or selling of certain birds that migrated between the U.S. and Canada, on the grounds that it was an unconstitutional interference with rights reserved to the States by the Tenth Amendment. The Court disagreed, and some particularly strong wording in Justice Holmes opinion freaked some people out:
This seemed to be saying that Congress could do an end run around the Constitution by use of the Treaty Power, so long as they found a cooperative foreign sovereign. The prospect had the States so concerned they attempted to pass the “Bricker Amendment” to the Constitution to limit Congress’ power to act under the Treaty Power. The Court in Reid v. Covert more or less put the controversy to rest, and said Holland merely stood for the proposition that the Tenth Amendment is not a bar to Congress’ use of the Treaty Power.
Reid dealt with two civilian women living overseas who were courtmartialed by military tribunals for criminal offenses. This would ordinarily be an unconstitutional violation of due process, but the government argued they were able to do so under treaties entered into with foreign powers. The Court disagreed. Justice Black stated about the Supremacy and Treaty Clauses:
So while Congress can act in some ways they ordinarily couldn’t that may intrude on State soveregnty under the Treaty Power, it cannot violate the Constution.
I can’t give a cite but a while back I read a magazine article complaining that many of our international trade agreements violate the constitutional provisions protecting US patent holders; that the provisions of the agreements essentially nullified patent holder’s rights.
In 1913 the Migratory Bird Act was passed by Congress. In 1914 a guy from Arkansas named Shauver was subsequently arrested for hunting migratory birds. The Supreme Court sided with Shauver, saying the act was unconstitutional. An identical ruling occurred in 1915 in the case of United States v. McCullagh.
The Senate wised up, and signed the Migratory Bird Treaty with Great Britain and Canada in 1916. This was followed by another Migratory Bird Act, which put the treaty in force.
In 1919 the new Act was tested when a guy named Thompson was arrested in Arkansas for hunting migratory birds. Guess what? The Supreme Court sided with the United States this time. Hmmmm… :dubious: