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Popular Sovereignty

Den Beste has an excellent post on American constitutionalism and the International Criminal Court. He effectively lays out the case against United States support of the International Criminal Court: it would be a surrender of popular sovereignty entirely at odds with the American constititutional tradition.

Indirectly, the post raises the question of treaty law as fundamental law of the United States. Steven suggests that a provision of a treaty ratified and signed by the United States must always yield to the Constitution (i.e. a treaty can be unconstitutional), and indeed common practice of courts has largely been to avoid dealing with the issue as best as possible. I am fairly certain it is still the case that the Supreme Court has never invalidated a treaty on the grounds that it was unconstitutional (though maybe Reid v. Covert comes close?).

That question is open to some dispute even today. Ages ago, I wrote a paper on the topic for a graduate seminar at UH Law, but of course it was lost in an ancient hard drive crash (darn!). The controversy revolves around this clause of Article VI of the Constitution:

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.
Some scholars (and some loons in militia movements as well!) have argued that a treaty properly ratified and signed by the United States could, as Supreme Law of the Land, supersede parts of the Constitution in some instances. My own inclination is the same as Steven's, and for this reason: a Treaty violative of some aspect of the Constitution could not be made "under the Authority of the United States" constitutionally, since no authority is granted to amend the Constitution via treaty!

The case of Missouri v. Holland, however, gave some ammunition to those who argue that a treaty can trump (or redefine) constitutional provisions. The state of Missouri contended that a treaty signed with Canada (on migratory birds!) was unconstitutional, since it allowed the national government to intrude in an area (wildlife management) reserved to the states under the Tenth Amendment. Justice Holmes (responsible for SO much of what is wrong with American constitutionalism today, despite his reputation) upheld the treaty, and here is some fascinating dicta:

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty- making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.
Holmes does seem to be suggesting a lesser standard for evaluating the constitutionality of treaties (essentially procedural) than for evaluating constitutionality of laws, and this dicta has always struck me as a bit scary.

The dicta also was enough to scare Senator Bricker in the 1950s into proposing a Constitutional amendment to constrain (or clarify, depending on your point of view) the treaty-making power, and it won surprisingly strong support. I think it fell one vote short on the Senate floor.

In Reid v. Covert, the Supreme Court backed away from the speculation in Missouri v. Holland:

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. . . .

There is nothing in Missouri v. Holland . . . which is contrary to the position taken here

That seemed largely to settle the debate, and in the right way. The language is kind of funny, though, because there are two ghosts of the Court that most justices will not touch: Marshall's and Holmes's. In this decision, the Court seems to go out of its way not to let on that they really are significantly restricting (essentially repudiating) the earlier Holmes dicta.

[Posted at 01:39 CST on 07/02/02] [Link]

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