Full Version: UN Charter and the US Const
QUOTE
(quick @ Apr 10 2008, 09:49 AM)
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
First, Article 42 effectively usurps the President as Commander in Chief of the US military. If UN Security Council can order any kind of military "operations" by Member nations, one of them being the USA, then they are usurping the President's power. Only the Congress can declare war, and only the Pres can be commander in chief. The Const would need to be amended to permit the UN to serve as commander of US armed forces under Article 41.
Can a country opt not to participate in a UN mission? I think so. And who would make that decision? The President? Congress? So, how does this Article usurp the power of the President as Commander in Chief?
QUOTE
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
As to Article 51, they have effectively said Members cannot wage aggressive war, only defensive war. The right to wage war--any war--is an intrinsic attribute of sovereignty; to waive any right to wage war would require amending the Const to limit our warmaking powers, as our Const does not limit the nation's warmaking power to only "defensive wars".
So, basically, any peace treaty we sign is not worth the paper it's written on because it limts this supposed "right to wage war". Peace treaties don't amend the constitution, either, do they? Somehow, I think you don't really know what you're talking about.
This is completely off topic. If you wish to continue this discussion, start another thread. I'll be happy to read your response to this there.
This post has been edited by entspeak: Today, 11:29 AM
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
First, Article 42 effectively usurps the President as Commander in Chief of the US military. If UN Security Council can order any kind of military "operations" by Member nations, one of them being the USA, then they are usurping the President's power. Only the Congress can declare war, and only the Pres can be commander in chief. The Const would need to be amended to permit the UN to serve as commander of US armed forces under Article 41.
Can a country opt not to participate in a UN mission? I think so. And who would make that decision? The President? Congress? So, how does this Article usurp the power of the President as Commander in Chief?
QUOTE
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
As to Article 51, they have effectively said Members cannot wage aggressive war, only defensive war. The right to wage war--any war--is an intrinsic attribute of sovereignty; to waive any right to wage war would require amending the Const to limit our warmaking powers, as our Const does not limit the nation's warmaking power to only "defensive wars".
So, basically, any peace treaty we sign is not worth the paper it's written on because it limts this supposed "right to wage war". Peace treaties don't amend the constitution, either, do they? Somehow, I think you don't really know what you're talking about.
This is completely off topic. If you wish to continue this discussion, start another thread. I'll be happy to read your response to this there.
This post has been edited by entspeak: Today, 11:29 AM
There is a basis for treaties to be found unconsitutional on similar grounds:
Reid v. Covert, October 1956, 354 U.S. 1:
"... No agreement with a foreign nation can confer power on the Congress, or any other branch of government, which is free from the restraints of the Constitution. Article VI, the Supremacy clause of the Constitution declares, "This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all the Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land...’
"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 which even suggest such a result...
"It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights – let alone alien to our entire constitutional history and tradition – to construe Article VI as permitting the United States to exercise power UNDER an international agreement, without observing constitutional prohibitions.
"In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and Senate combined."
Questions for Debate:
Are US treaties subject to, or not subject to, the Constitution of the United States?
If so subject, should a treaty be invalid if it conflicts with the Const absent an amendment to the Const?
Questions for Debate:
Are US treaties subject to, or not subject to, the Constitution of the United States?
If so subject, should a treaty be invalid if it conflicts with the Const absent an amendment to the Const?
Yes, they are subject to the Constitution and yes, absolutely. The Constitution trumps all other law be it legislation passed by Congress and signed by the President, or a treaty signed by the President and ratified by the Senate. To give that treaty the same standing as the Constitution itself (and it's amendments of course) would in effect circumvent the Constitutional amendment process. Not a good idea and I doubt the Supreme Court would stand for it.
Aquilla
Are US treaties subject to, or not subject to, the Constitution of the United States?
If so subject, should a treaty be invalid if it conflicts with the Const absent an amendment to the Const?
Yes, they are subject to the Constitution and yes, absolutely. The Constitution trumps all other law be it legislation passed by Congress and signed by the President, or a treaty signed by the President and ratified by the Senate. To give that treaty the same standing as the Constitution itself (and it's amendments of course) would in effect circumvent the Constitutional amendment process. Not a good idea and I doubt the Supreme Court would stand for it.
Aquilla
Are US treaties subject to, or not subject to, the Constitution of the United States?
I don't think this has ever been ruled on by the SCOTUS. However, if you look at the amount of consensus necessary for a Constitutional amendment -- either 2/3s of both Houses of Congress AND 3/4s of the states or a Consitutional convention after which amendments must be ratified by 3/4s of the states -- and contrast that to the hurdle for a treaty -- the President signing and the Senate (only) gives "advise and consent" with a two thirds majority -- it should be obvious that the treaty process was not intended to amend the Constitution.
One way of looking at this is that the US government cannot give away power which it does not possess. The federal government has checks and balances which, in theory, should preclude any one branch from giving away its power via a treaty.
The Constitution states:
This is a statement of the supremacy of federal law, which includes treaties, over state law. It is not a statement of supremacy of treaties over the Constitution. The phrase "of any State" is the key to understanding what this means. So we could rewrite that last part as "anything in the Constitution of any State or the laws of any State to the contrary notwithstanding."
Simplied, this sentence would say:
If so subject, should a treaty be invalid if it conflicts with the Const absent an amendment to the Const?
Yes, a treaty which violates the Constitution would be un-enforceable for those parts that violate the Constitution.
The Constitution does not put treaties above itself, nor does the mechanism ratifying a treaty vis-a-vis a Constitutional amendment make sense to interpret it that way.
I don't think this has ever been ruled on by the SCOTUS. However, if you look at the amount of consensus necessary for a Constitutional amendment -- either 2/3s of both Houses of Congress AND 3/4s of the states or a Consitutional convention after which amendments must be ratified by 3/4s of the states -- and contrast that to the hurdle for a treaty -- the President signing and the Senate (only) gives "advise and consent" with a two thirds majority -- it should be obvious that the treaty process was not intended to amend the Constitution.
One way of looking at this is that the US government cannot give away power which it does not possess. The federal government has checks and balances which, in theory, should preclude any one branch from giving away its power via a treaty.
The Constitution states:
QUOTE
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.
This is a statement of the supremacy of federal law, which includes treaties, over state law. It is not a statement of supremacy of treaties over the Constitution. The phrase "of any State" is the key to understanding what this means. So we could rewrite that last part as "anything in the Constitution of any State or the laws of any State to the contrary notwithstanding."
Simplied, this sentence would say:
QUOTE(AMLord's simplification)
Federal law, as defined by the laws and treaties created under the Consitution, shall be the supreme law of the land. States shall be bound by it, despite what their state Constitutions or laws might say.
If so subject, should a treaty be invalid if it conflicts with the Const absent an amendment to the Const?
Yes, a treaty which violates the Constitution would be un-enforceable for those parts that violate the Constitution.
The Constitution does not put treaties above itself, nor does the mechanism ratifying a treaty vis-a-vis a Constitutional amendment make sense to interpret it that way.
This issue was setted in Missouri v. Holland, 252 U.S. 416 (1920)(aka the Migratory bird case). The way it goes is Constitution > Treaties > Statutes. Thus, the Constitution trumps any treaty, but treaties trump statutes.
JW
JW
QUOTE
This issue was setted in Missouri v. Holland, 252 U.S. 416 (1920)(aka the Migratory bird case). The way it goes is Constitution > Treaties > Statutes. Thus, the Constitution trumps any treaty, but treaties trump statutes.
This case does not make this statement at all.
According to the Supremacy Clause, Treaties are also the supreme law of the land, right alongside the Constitution. Holland seems to claim that so long as a treaty does not "contravene any prohibitory words to be found in the Constitution," that it is valid. There is nothing to say that the UN Charter is an invalid treaty because it imposes limitations on government power delegated in the Constitution and in regards to its behavior with other countries - the language of the Constitutions in those relevant sections are not prohibitions upon the government. And such limitations are the very nature of treaties. To argue that the US couldn't enter into such agreements would mean that the Supremacy Clause was meaningless as well as all peace treaties.
Reid recognized that the government can't abridge the constitutionally protected rights of its citizens with an international agreement. The majority of quick's quotes from Reid are taken directly from the earlier Holland.
QUOTE(entspeak @ Apr 19 2008, 02:08 PM) 
QUOTE
This issue was seated in Missouri v. Holland, 252 U.S. 416 (1920)(aka the Migratory bird case). The way it goes is Constitution > Treaties > Statutes. Thus, the Constitution trumps any treaty, but treaties trump statutes.
This case does not make this statement at all.
According to the Supremacy Clause, Treaties are also the supreme law of the land, right alongside the Constitution. Holland seems to claim that so long as a treaty does not "contravene any prohibitory words to be found in the Constitution," that it is valid. There is nothing to say that the UN Charter is an invalid treaty because it imposes limitations on government power delegated in the Constitution and in regards to its behavior with other countries - the language of the Constitutions in those relevant sections are not prohibitions upon the government. And such limitations are the very nature of treaties. To argue that the US couldn't enter into such agreements would mean that the Supremacy Clause was meaningless as well as all peace treaties.
Reid recognized that the government can't abridge the constitutionally protected rights of its citizens with an international agreement. The majority of quick's quotes from Reid are taken directly from the earlier Holland.
I think you misread Holland or my quick reply to the thread. Yes, Holland does state that Treaties are the Supreme law of the land - but they are always subject to the constitution. It would be an anathema to Constitutional law and the plain reading of the Constitution for the Constitution to be amended by a treaty. That it why one looks at Treaties being supreme over statutes, but always subject to the Constitution. Any treaty must be read within the constraints of the Constitution.
Going to the questions in the OP-
Would the Constitution have to be amended to permit a UN Commander of US troops? No, not at all. There are countless times US forces have been under foreign command. Simply look at WWII. US forces were under command of Mountbatten in India. WW I, The Commander o the Western Front was French (if memory serves correctly). Any number of UN Missions where the supply folks are OPCON to the UN Commander while performing missions. Any number of the NATO Subcommands are commanded by foreign officers. While tactical command may be fluid - the overall command flows to the President. He, through SECDEF or other delegee, grants such temporary tactical command to a foreign officer does not affect his inherent authority as CINC of US forces. He can remove said troops at any time for any reason form command of the foreign commander. That is reading the UN Charter within the meaning of the Constitution.
A peace treaty is worth the paper it is written on in that it is an exercise of the Presidents power to make treaties. It does not conflict with the power to wage war in that a Treaty must be ratified by Congress. It would take a tortured reading of the Constitution to think that the drafters would craft a document that would ignore such a common use for a treaty. I cannot fathom a scenario where any court would say that is an extra-Constitutional act. Such a peace treaty could not, of course, change the way that our elections occurred vis a vis the electoral college, or in any way amend the Constitution, but other than that, as long as the provisions did not conflict with the Constitution, it is fine. If one wants to make sophist arguments that such restrictions could not include termination of the war, that would simply deny what the purpose of a peace treaty was in 1789 or is in 2008.
Holland did settle the issue in that it clarified what was meant by the Supreme law of the land. I am not sure how much more I can explain it with out making this into a conflict of laws/Constitutional law law school semester long course.
W
Great to see you, Jagwease. 
Are US treaties subject to, or not subject to, the Constitution of the United States?
Definitely subject to. The Holland case mentioned above by Jagwease, and Reid v Covert by quick would indicate as much.
But the premise for this thread is flawed. The UN charter does not supercede sovereignty. I'm not sure how anyone could come to this conclusion considering the vast amounts of trouble the UN has had in recruiting those blue helmets?
If what quick stated were true, the UN would just pick several thousand soldiers from the countries of its choice, rather than often having to take handfulls of dismal forces provided by third world governments that make money off of the backs of those soldiers.
Simple historical reasonability test: Do you think Soviet Russia or Nationalist China would have volunteered to join an organization that was going to tell them how to run their country and permitted to triumph over their sovereignty?
Are US treaties subject to, or not subject to, the Constitution of the United States?
Definitely subject to. The Holland case mentioned above by Jagwease, and Reid v Covert by quick would indicate as much.
But the premise for this thread is flawed. The UN charter does not supercede sovereignty. I'm not sure how anyone could come to this conclusion considering the vast amounts of trouble the UN has had in recruiting those blue helmets?
If what quick stated were true, the UN would just pick several thousand soldiers from the countries of its choice, rather than often having to take handfulls of dismal forces provided by third world governments that make money off of the backs of those soldiers.Simple historical reasonability test: Do you think Soviet Russia or Nationalist China would have volunteered to join an organization that was going to tell them how to run their country and permitted to triumph over their sovereignty?
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