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A question has been raised:  Could the President supersede a provision of the Constitution by making a treaty contrary to that provision?  For example, could the 2nd Amendment right of the people to keep and bear arms be superseded by an international treaty which would restrict people from keeping and bearing arms?

 

The Law is wishy-washy.  The current predominant notion is that treaties take precedence over the Constitution.  Thus, an international coalition is able to empower our President with unlimited authority to wage war, to enforce peace, and to define human rights.  This situation is derived from our Constitution Article VI, which is lately interpreted to mean that treaties are supreme law superseding Constitutional provisions.

 

U.S. Constitution, Article VI, Paragraph 2:

"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."

 

The current predominant notion of treaties taking precedence is an unconstitutional misinterpretation of our Constitution.  Unfortunately, our judicial system is prone to occasional errors.  It has ruled both ways on this particular issue.  Below, I will provide my interpretation of the treaty issue.  In the mean time, let it be noted that there have been many serious and very nearly successful attempts to amend the Constitution in such a way as to avoid the current misinterpretations.

 

"The Bricker Amendment is the collective name of a series of proposed amendments to the United States Constitution considered by the United States Senate in the 1950s. These amendments would have placed restrictions on the scope and ratification of treaties and executive agreements entered into by the United States and are named for their sponsor, Senator John W. Bricker of Ohio, a conservative Republican."  (Wikipedia: Bricker Amendment)

 

"The best-known version of the Bricker Amendment, considered by the Senate in 1953–54, declared that no treaty could be made by the United States that conflicted with the Constitution, was self-executing without the passage of separate enabling legislation through Congress, or which granted Congress legislative powers beyond those specified in the Constitution. It also limited the President's power to enter into executive agreements with foreign powers."  (Wikipedia: Bricker Amendment)

 

The Constitution, the Laws, and the Treaties, they "shall be the supreme law of the land" (Article VI, Paragraph 2).  The Laws are made in pursuance of the Constitution (Article I, Section 8, Clause 18), and the treaties are made under the authority of the United States (Article II, Section 2, Paragraph 2).  Thus all authority to make Laws and Treaties is delegated from the Constitution.  Hence, the Constitution takes precedence over the Laws and the Treaties. 

 

U.S. Constitution, Article I, Section 8, Clause 18:

"[The Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

 

U.S. Constitution, Article II, Section 2, Paragraph 2:

"He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur ...."

 

Article VI speaks in terms of Constitution, Laws, treaties, authority, and supreme.  All these terms and judicial power relate to the Supreme Court (Article III, Sections 1 and 2).  Thus in Article VI, the expression "the supreme law of the land" serves simply to identify the primary basis of the court's concerns.

 

U.S. Constitution, Article III, Section 1:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish ...."

 

U.S. Constitution, Article III, Section 2:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...."

 

Also from a larger perspective, the Constitution establishes the Government and limits its power.  It is inconceivable that the Founders would intentionally elevate a treaty such that it could supersede the limitations so established.  Article V establishes the means to amend our Constitution; it does not include the making of an international treaty as a way to alter our Constitution.

 

In conclusion, even though Article VI is currently used to elevate the role of treaties such that an international coalition is able to empower our President with unlimited authority, that interpretation of Article VI is incorrect.  With a correct interpretation, treaties do not supersede the Constitution, and the President is bound to the terms of our Constitution.

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