Power to create treaties is established in Article 2 Section 2 Clause 2 of the Constitution. The power to create a treaty is delegated by the people to the President with approval of a two thirds vote of the Senate. The Supremacy Clause then 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, anything in the constitution or laws of any state to the contrary notwithstanding.
The power to create treaties was vested in the President AND the Senate after the failure of the Articles of Confederation. The Articles of Confederation created a federal government so small that it could not successfully complete the tasks it was delegated to accomplish. James Madison explains in Federalist #45 that the power delegated to the federal government was one of very limited proportions.
Exercised principally on external objects, as war, peace, negotiation, and
Foreign commerce; with which last the power of taxation will, for the most part, be connected.”
Our federal government was designed to be our national representative to the foreign world.
During the Articles of Confederation, our federal government could not collect taxes or even compel the delegates to show up to work and do their job. The federal government was attempting to make agreements with foreign nations and was defaulting on these agreements because they had no authority to enforce them equally throughout the states and the states themselves were suffering the greatest consequences.
The Congress could make treaties of commerce, but could not enforce the observance of them.
The collective decision was made to not only delegate the power of treaties to the President and Senate but to also classify its relevance in enforcement to the states These treaties, although they may attempt to supplant the Constitution, they are plainly not justified in doing so. Our founders repeatedly stated that treaties were, for every purpose and application, CONTRACTS. CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.” Federalist #75.
One way they could fail is if they attempted to infringe upon or utilize a power that had not been granted to them through the Constitution. They were to be bound and fettered by all the limitations of power inherent in the Constitution through the specific delegated powers and the necessary and proper and general welfare clauses. . Because we have become so detached from the founders intent, we have allowed these clauses to become an expansion of power, a consequence that our founders thought an abomination.
So, if a treaty attempted to assume a power that was not previously delegated, for instance to bind upon the states agreement for an object outside of the realm of war, peace, or foreign commerce, it would be deemed unconstitutional. ” “By the general power to make treaties, the constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated.
the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.”
Thomas Jefferson: Parliamentary Manual, 1800. Another limitation imposed by our founders on treaties is that they MUST NOT be in conflict with the Constitution. If a treaty is in direct conflict with, let’s say the Second Amendment, that treaty would be considered unconstitutional. NEVER supposed to be superior to the Constitution. There is no law superior to the Constitution. “No legislative act, therefore, contrary to the Constitution, can be valid.
” Federalist #78 But what are we to do when these treaties fail the tests of Constitutional limitations’?
As a matter of fact, our founders wanted us to know that if a treaty was in opposition to the Constitution, there were significant consequences. “if they [the President & Senate] act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties? The treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.” Federalist #64There is no qualification in that statement that this treaty be replaced or a Constitutional Amendment be written. The simple fact of the matter is this treaty would be a “fraudulent contract” and would be of no effect.
It is always the responsibility of the PEOPLE to be the ultimate check and balance. I think that Alexander Hamilton made this point abundantly clear in Federalist #33:
The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded … would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.” Federalist #33 Every day our federal government seems to operate more and more under the assumption that their power is derived in the manner of a Kingdom, it is essential that the people, from which its true power is derived, stand against this tyranny and restore the balance of power.
Source: kris anne hall