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Exploring the Constitution, Part 16: Articles VI and VII and the Authority of Treaties

Copyright 1998 by David W. Neuendorf



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Articles VI and VII are the last in the Constitution. In this column we will consider those articles; future columns will cover the amendments. Article VI obligates the new government under the Constitution to pay the debts it had incurred under the Articles of Confederation. It makes the Constitution, federal laws, and treaties the supreme law of the land, superior to state laws. It also mandates that all elected and appointed officials in the United States will "be bound by Oath or Affirmation, to support this Constitution..." Article VII simply states that the Constitution will take effect upon ratification by at least nine of the thirteen states.

For the most part, these two articles are pretty straightforward and not open to misinterpretation and abuse. The glaring exception is the paragraph which discusses the authority of treaties. The actual words are as follows:

"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."

For many years, everyone understood that treaties did not override the Constitution, and should be concerned only with international relations so their impact on domestic law would be minimal. Alexander Hamilton, for example, stated that "A treaty cannot be made which alters the Constitution of the country, or which infringes any express exceptions to the power of the Constitution..." James Madison, a primary author of the Constitution: "I do not conceive that power is given to the President and the Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority to have this power." Finally, Thomas Jefferson's assessment: "I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution."

In spite of the clear evidence that the treaty power was intended to be limited, promoters of big government in our century have attacked our constitutional protections through a deliberate misinterpretation of Article VI. They read it as "Treaties...shall be the supreme Law of the Land...any Thing in the Constitution...to the Contrary notwithstanding." They claim that the mention of a Constitution refers to the US Constitution, when the grammar in this clause and usage elsewhere in the document clearly shows that it is referring to the "Constitution or Laws of any State." In other words, while treaties are to take precedence over state laws and constitutions, the would-be tyrants assume that they take precedence over our federal Constitution.

To support this contention, liberals often quote John Foster Dulles, Eisenhower's Secretary of State. Dulles believed as follows: "Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can over-ride the Constitution. Treaties, for example, can take powers away from Congress and give them to the President; they can take powers from the state and give them to the federal government or to some international body, and they can cut across the rights given the people by the constitutional Bill of Rights."

If such an interpretation of Article VI were to prevail, our liberty would be in grave danger every time the Senate considers ratifying a treaty made by the president. There are many recent examples of treaties that could strip us of our constitutional protections. The Biodiversity Treaty is so broadly worded as to require international regulation of every detail of human activity. The Kyoto treaty on "global warming" would have the power to reduce the US standard of living to that of a third world nation. The proposed World Criminal Court could try Americans in an international star chamber without any of the protections afforded by our Bill of Rights. The list of dangerous treaties, ratified and unratified, goes on and on. If each of these documents is superior to our Constitution, we are in worse trouble than most of us have ever imagined.

What can we do to protect ourselves? As always, the answer is to hold our elected officials, especially those in Congress, to their Article VI oath of office. When they start to forget that their primary duty is to uphold the Constitution, we must get them back on track or replace them. Any treaty that contradicts any part of the Constitution must be rejected out of hand.