Trivium Pursuit

Do treaties trump the Constitution?

by Harvey Bluedorn

There has been much effort in the media to make us believe that treaties supersede the Constitution. But what does the Constitution actually say?

The text of the Constitution repeatedly refers to itself as “this constitution.” The sole exception is the wording of the President’s oath of office, where (because the actual administration of the oath is not a part of the document) it would make no sense to swear to “this Constitution” but rather to “the Constitution.”

The Supremacy Clause begins with the words, “this 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.”

How can this clause be twisted to mean that treaties supersede the Constitution itself? Certain words are selected out and strung together into the phrase “all Treaties made … shall be the supreme Law of the Land … any Thing in the Constitution … to the Contrary notwithstanding.”

One must be wary when persons who are otherwise not at all worried about the strict construction of the Constitution suddenly get particular about the language. One should suspect misdirection.

Notice the original wording “… the Constitution or Laws of any State …” It is plain in its context that “the constitution” here does not refer to “this Constitution” at all, but refers only to “the constitution … of any state” – an expression which nicely parallels the wording which begins the entire sentence: “this Constitution and the Laws of the United States … the Constitution or Laws of any State.”

Secondly, notice that the words “made in pursuance thereof” are disregarded as meaningless. But they are actually the operative words of the entire sentence. What this clause actually means is that only laws “made in pursuance” of the Constitution, and treaties made “under the Authority of the United States” – which authority is established and necessarily limited to what is done “in pursuance” of “this Constitution” – are the supreme law of the land. Any law or any treaty provision which is not “made in pursuance” – that is, which does not properly follow from, and therefore violates – “this Constitution” is null and void the moment it is made. Furthermore, the judges in every state are bound to recognize this constitutional supremacy – any ruling they make which is contrary to “this Constitution” is null and void the moment it is made. By clear implication, the same holds true regarding the Supreme Court of the United States – any ruling they make which is contrary to “this Constitution” is null and void the moment it is made, otherwise the supreme court would itself necessarily become the supreme law of the land, which would overthrow “this Constitution” and the whole concept of the rule of law. The same would hold true of the other branches of the federal government – they must act only “in pursuance” of “this Constitution,” and for them to do otherwise would be to set themselves above the law, not under the law.

So the Supremacy Clause, rightly understood, places all three branches of the federal government, as well as all state and local governments, under the rule of law – no exceptions. The question remains, “Who is the final arbiter of whether something is done “in pursuance” of “this Constitution.” The only possible answer is “we the people” – through whatever means and agencies we regard as fitting and necessary – on the federal level, the state level, the local level, or the individual level.

The only constitutional exception to the power of making treaties is that it shall not change the Constitution… – Alexander Hamilton

I say the same as to the opinion of those who consider the grant of treaty-making power to be boundless. If it is, then we have no Constitution. – Thomas Jefferson

the founders say resist

One Response to “Do treaties trump the Constitution?”

  1. Heather Says:

    Thank you, Mr. Bluedorn, for making this important point so clear!