Tenth Amendment Center: Treaties Do Not Trump the Constitution
Does a treaty or international tribunal trump the Constitution?
Short answer: No!
As constitutional scholar Rob Natelson explained, “The treaty has the force only of a statute, not of a super-constitution.”
In an exchange on social media, TAC member John Crigger did a good job of making this case as well.
The debate centered on whether or not the United Nations can enforce its small arms treaty in the United States. “Richard” insisted that it could.
“Yes, the U.N. can enforce their Small Arms Treaty against the United States right now because Obama signed it for the United States. And believe me; they will enforce it, because they are aggravated that we can still own guns. They will take it to the World Court, which will rule against the U.S., and a world court ruling ranks above our Constitution.”
But nothing stands above the Constitution. That includes treaties. Per the Supremacy Clause, any treaty entered into by the U.S. must be “in pursuance” of the Constitution, just like any law passed by Congress. A treaty not in pursuance of the Constitution is null, void and of no effect.
So for instance, a treaty that violates the people’s right to keep and bear arms would not be valid under the U.S. Constitution.
But Richard believes the World Court could actually require the U.S. to repeal the Second Amendment, so it would be compatible with the U.N. small arms treaty. Why? Because Pres. Obama signed the treaty “and Trump doesn’t seem to be willing to delete that signature – so it is still in effect.”
Crigger reiterated, “We are a sovereign nation. The Constitution of the United States is the law of the land in the U.S.”
Crigger didn’t just rely on his assertion, correct though it was. He used founding era documentation to support his case
In a letter to Alexander Hamilton dated 8 May 1796, George Washington wrote:
“We are an Independent Nation, and act for ourselves … But if we are to be told by a foreign Power what we shall do, and what we shall not do, we have Independence yet to seek, & have contended hitherto for very little.”
Crigger also pointed out that during the ratification debates, supporters of the Constitution assured us, “That no treaty shall be effectual to repeal or abrogate the constitutions or bills of rights of the states, or any part of them.” – Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 2 (2d ed. Washington, D.C., 1836). Pg. 553
“That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state.” – Elliot, Jonathan. Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 1 (2d ed. Washington, D.C., 1836). Pg. 329
Richard replied, “That’s what we have said. What would a world court say???? My guess is they would rule this invalid.”
But as Crigger pointed out, that wasn’t Richard’s original assertion. He claimed, “The World Court ruling ranks above our Constitution.”
It doesn’t. Not in the American legal system. The point is that the U.S. isn’t under any obligation to submit to a World Court opinion just because the president signed a treaty. If that treaty violates the Constitution, it is void.
Crigger summed it up nicely.
“Just because the World Court would rule against us does not mean the World Court ruling ranks above our Constitution. My point was to show no court or treaty is above the Constitution.”
Crigger is right. The World Court can say whatever it pleases. The U.S. does not have to comply and the World Court cannot enforce its opinion without American cooperation.