U.S. Constitution; Article VI; Clause 2 - The Antifederalist Dissent
It is proper to consider, as a part of the ongoing discussion regarding indefinite detentions without first securing a conviction at a trial that adhered to due process of law, and its constitutionality; The Geneva Conventions' allowance for detaining POWs for the indeterminate period of a conflict's duration. When viewed within the scope of U.S. Constitution; Article VI; clause 2; legitimises it. There are those who believe that a treaty which violates Constitutional text can never be legitimate, yet a simple reading of Art. VI; clause 2; implies otherwise:
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.A treaty enacted "under the Authority of the United States" is "the supreme law of the land...any Thing in the Constitution or Laws of any State to the Contrary notwithstanding". Clearly, lawfully enacted treaties possess supremacy within their scope over Constitutional text. This has always been a potential threat to liberty.
During the Constitution's ratification debates, Federalists argued Article VI's dangerous potential was guarded against through a treaty's two-step process of ratification: the power to make treaties was given solely to the President, but could only be enacted lawfully if 2/3 of the Senate assented to it. The assumption being that a super-majority of the Senate would guard against encroachments to liberty within any treaty. They also felt Article VI's supremacy clause was essential, because a nation, unable to give full faith and credit to its treaties, could never be trusted by other nations.
Many Antifederalists considered Article VI; a flaw big enough to oppose The Constitution's ratification. The Federalists won out. Article VI is the law of the land.
What follows are three different dissents against the constitution's ratification, based on Article VI. I will try to follow-up in the next few days with more recent citations related to Article VI's supremacy clause.
Richard Henry Lee (Federal Farmer)
There are certain rights which we have always held sacred in the United States, and recognized in all our constitutions, and which, by the adoption of the new constitution in its present form, will be left unsecured. By article 6, the proposed 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.)George Mason - Virginia Ratifying Convention
It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be; made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.
By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution-nor are there any constitutional bounds set to those who shall make them: The president and two-thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it be [3o] practicable to set any bounds to those who make treaties, I am not able to say; if not, it proves that this power ought to be more safely lodged.
The federal constitution, the laws of congress made in pursuance of the constitution, and all treaties must have full force and effect in all parts of the United States; and all other laws, rights and constitutions which stand in their way must yield: It is proper the national laws should be supreme, and superior to state or district laws; but then the national laws ought to yield to unalienable or fundamental--rights and national laws, made by a few men, should extend only to a few national objects.
Richard Henry Lee, "Federal Farmer IV", October 12, 1787
Text from: Ford, Paul Leicester. 1888. Pamphlets on the Constitution of the United States, published during its discussion by the people, 1787-1788; with notes and a bibliography. Brooklyn: [s.n.]. pp 311, 311
When the people of Virginia formed their government, they reserved certain great powers in the bill of rights. They would not trust their own citizens, who had a similarity of interest with themselves, and who had frequent and intimate communication with them. They would not trust their own fellow-citizens, I say, with the exercise of those great powers reserved in the bill of rights. Do we not, by this system, give up a great part of the rights, reserved by the bill of rights, to those who have no fellow-feeling for the people - to a government where the representatives will have no communication with the people? I say, then, there are great and important powers, which were not transferred to the state government, given up to the general government by this Constitution.An Old Whig; No. 2
Let us advert to the 6th article. It expressly declares, that "this Constitution, and the laws of the United States which shall he 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." Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government? The bill of rights is a part of our own Constitution. The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up. If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government? These rights are given up in that paper; but I trust that this Convention will never give them up, but will take pains to secure them to the latest posterity. If a check be necessary in our own state government, it is much more so in a government where our representatives are to be at the distance of a thousand miles from us, without any responsibility.
George Mason, Virginia Federal Constitution Ratifying Convention, June 11, 1788
As published in: Elliot, Jonathan, and James Madison. 1891. The debates in the several state conventions on the adoption of the federal Constitution. Philadelphia: J.B. Lippincott. Vol III. pp 265, 266
My object is to consider that undefined, unbounded and immense power which is comprised in the following clause;-"And, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States; or in any department or offices thereof." Under such a clause as this can any thing be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed? "To make all laws which shall be necessary and proper" is in other words to make all such laws which the Congress shall think necessary and proper,-for who shall judge for the legislature what is necessary and proper?-Who shall set themselves above the sovereign?-What inferior legislature shall set itself above the supreme legislature?-To me it appears that no other power on earth can dictate to them or controul them, unless by force; and force either internal or external is one of those calamities which every good man would wish his country at all times to be delivered from.-This generation in America have seen enough of war and its usual concomitants to prevent all of us from wishing to see any more of it;-all except those who make a trade of war. But to the question;-without force what can restrain the Congress from making such laws as they please? What limits are there to their authority?-I fear none at all; for surely it cannot justly be said that they have no power but what is expressly given to them, whereby the very terms of their creation they are vested with the powers of making laws in all cases necessary and proper; when from the nature of their power they must necessarily be the judges, what laws are necessary and proper. The British act of Parliament, declaring the power of Parliament to make laws to bind America in all cases whatsoever, was not more extensive; for it is as true as a maxim, that even the British Parliament neither could nor would pass any law in any case in which they did not either deem it necessary and proper to make such law or pretend to deem it so. And in such cases it is not of a farthing consequence whether they really are of opinion that the law is necessary and proper, or only pretend to think so; for who can overrule their pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements. This reasoning I fear Mr. Printer is but too just; and yet, if any man should doubt the truth of it; let me ask him one other question, what is the meaning of the latter part of the clause which vests the Congress with the authority of making all laws which shall be necessary and proper for carrying into execution ALL OTHER POWERS;-besides the foregoing powers vested, &c. &c. Was it thought that the foregoing powers might perhaps admit of some restraint in their construction as to what was necessary and proper to carry them into execution? Or was it deemed right to add still further that they should not be restrained to the powers already named?-besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution. The Congress shall judge of what is necessary and proper in all these cases and in all other cases;-in short in all cases whatsoever.Personally, I am dubious about, and troubled by, any indefinite detention of a human who has not been convicted in a trial process that afforded traditional American due process of law. It is a repugnant concept. I am also tired of and offended by those who wrap themselves up within the Constitution's mantle, as a method of disguising hyperbolised agenda. I have grown weary of references to Glenn Reynolds, and have lost a great deal of the respect I once held for him over the last few months. It is improper for one to exaggerate truth, speaking in public as an authority. That may well be proper for an attorney, arguing a case for a plaintiff, but is improper rhetoric when spoken from atop a soapbox in the free-marketplace of ideas.
Where then is the restraint? How are Congress bound down to the powers expressly given? what is reserved or can be reserved?
Yet even this is not all-as if it were determined that no doubt should remain, by the sixth article of the constitution it is declared that, "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 constitutions or laws of any state to the contrary notwithstanding." The Congress are therefore vested with the supreme legislative power, without controul. In giving such immense, such unlimited powers, was there no necessity of a bill of rights to secure to the people their liberties? Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? and who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character.
An Old Whig II, Philadelphia Independent Gazetteer, October 17, 1787
As quoted from: Teaching American History dot org
Everyone please; spare me the situational posing as Absolutist Defenders of The Constitution. You cannot pick and choose; it's either all or nothing. In my life, I've met far too few who understand the real implications of this, and will defend its great good, as well as its weaknesses and errors, as long as they remain unamended. Even the ACLU, an organisation I respect greatly, is right only 9 out of 10.
There must be some way out of here,
said the joker to the thief.
There's too much confusion,
I can't get no relief.
Businessmen, they drink my wine,
plowmen dig my earth.
None of them along the line
know what any of it is worth.
No reason to get excited;
the thief, he kindly spoke.
There are many here among us,
who feel that life is but a joke.
But you and I, we've been through that,
and this is not our fate;
So let us not talk falsely now,
the hour is getting late.
All along the watchtower,
princes kept the view
While all the women came and went,
barefoot servants, too.
Outside in the distance
a wildcat did growl;
Two riders were approaching,
and the wind began to howl.
Bob Dylan, "All Along The Watchtower"
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Whig had a point.
May 25, 2009 8:58 PM | Reply | Permalink
The men who are categorised as "Anti-Federalists", are often viewed presently with contempt. They were, after all, losers. It does not help that many of their arguments were used as rationalisations justifying the Confederacy.
They were not stupid, nor were they opposed to the formation of a strong national government. The dissented honestly about what they perceived to be weaknesses in The Constitution, and many of those dissents were valid criticisms. The Anti-Federalists were the reason Madison promised to immediately work to enact a Bill of Rights as Constitutional Amendments if the Constitution was ratified. We have them to thank for the Bill of Rights. Article VI; clause 2 was not amended by Madison however, and still remains in effect. Madison felt it was a power essential for the proper functioning of the National Government.
May 25, 2009 9:17 PM | Reply | Permalink
Never trust a politician farther than you can swing a rope over a limb from the old oak tree growing in front of City Hall.
Is this not a true American concept?
May 25, 2009 9:25 PM | Reply | Permalink
Just to give you a heads-up that there may be more than the usual traffic to this blog, as I've posted a link to it at emptywheel. It's that important, I think.
May 25, 2009 9:31 PM | Reply | Permalink
Heh, it sure is.
May 25, 2009 9:33 PM | Reply | Permalink
And also. As Bwak would usually say....
May 25, 2009 9:48 PM | Reply | Permalink
Outstanding post, PCA! Simply outstanding!
Highly, highly recommended!
So, in effect, any treaty is like an amendment to the Constitution, with only the assent of the President and the Senators elected at the time. Wow!
Thus, clearly, via Geneva, War Crimes have occurred and must be prosecuted. This is the strongest case I've seen!
And that, to me, precedes any consideration of what to do about those against whom war crimes have occurred, the very persons whom Obama has thought to detain for a lengthy time.
I am completely in agreement with your sentiments. I too, as you know, am troubled by the thought of prolonged detentions. But rather than detentions, this blog convinces me of the mandate for indictments and convictions. To me, that has got to be the first priority.
That's where I stand. I hope you won't class me among the ones you revile.
I look forward to the further information you will be posting on this. Which I will surely be recommending. All your efforts are paid off - in spades!
You've present a very convincing argument. I now need to write a third update to that one post!
My recommendation of the importance of this blog is in the stratosphere!
May 25, 2009 9:29 PM | Reply | Permalink
Good background PCA. Thank you for posting. Perhaps in the end the issue we have with indefinite detention lies more in the agreed to definition and acceptance of an 'open-ended' war on terror, rather than with the specific wording of the Geneva Conventions.
p.s. Brilliant use of 'All along the Watchtower'.
May 25, 2009 9:47 PM | Reply | Permalink
IMO the entire line of thought is based on a bullshit argument. Geneva is a treaty between nations. Al Qaeda isn't a state, "terror" isn't a nation. Al Qaeda activities fall under the agreed international definitions of crime.
There is no war. Therefore there can be no POWs.
May 26, 2009 12:22 PM | Reply | Permalink
Excellent point KGB
We have, in a sense, and I am uncomfortable with the characterization but will continue, "elevated" these criminals to warriors or soldiers. We are led to believe Al-Quaeda has a level of legitimacy much greater then they deserve. They are a band of thugs, much like the mob. They seek to govern through intimidation, all the while having no actual state to govern. They have nothing to offer.
It always struck me that they had nothing to offer after 9/11. Aside from the loss of life, the towers were destroyed and there was no replacement. I felt that the towers were a symbol of the greatness of humanity, not merely a national treasure. People had constructed these amazing structures. In a few short hours they were rubble and al-Quaeda could offer nothing to replace them. Oh, sure, they hoped our financial world would disintegrate over night, but there was no way that would occur.
We can do that by ourselves, thank you very much!
Back to your point, though, KGB. We still need to dial back our perceptions of who these people really are. They are not uncontainable by our prisons, and they are not God's warriors. They are thugs, pure and simple. Accuse them of that and nothing more, give them a trial and send them to jail if that is where a court judges they belong.
May 26, 2009 12:51 PM | Reply | Permalink
Bingo! Had we defined these actions as such, however, it would not have fostered the climate of fear that enabled the neocon agenda to establish a military foothold amidst all that oil. It was imperative from the neocolonialists perspective to define the conflict as something the media and electorate would perceive as much more dangerous than a criminal/police matter.
May 26, 2009 1:33 PM | Reply | Permalink
Well, if there is no war, then bush had no war powers.
May 26, 2009 3:56 PM | Reply | Permalink
Is this not how we got the term "enemy combatant"? Those pesky terrorists were not soldiers, thereby not subject to the Geneva Conventions?
I am not sure where this argument gets us.
May 26, 2009 5:52 PM | Reply | Permalink
My god, I have never seen a post shoot up with this many recommends so fast - ever!!!
Paging dd! There is a winning blog over here!
May 25, 2009 10:04 PM | Reply | Permalink
Thank you PCA for presentation of Article VI; Clause 2, and the arguments prior to its inclusion. This clause is pertinent in a number of situations - including torture - however many are not aware that treaties and international agreements supercede national (and therefore state and local laws). The two areas where I have argued this most are in relationship to treaties between the federal government and the tribes, and in relationship to GATT and NAFTA.
In the "debates" about what is torture - what is not, what's the big deal about being a POW or an "enemy combatant" or a "detainee" all of this becomes internationally pertinent - and therefore pertinent to the United States. Having signed and become party to a series of international agreements, the U.S. cannot then (legally) unilaterally break them, or write laws contradicting them.
The "debate" over this issue is based in a similar fallacy as pointed to in oleeb's early post Let's Look at the Court Decision Ordering Release of the Photos The President Now Seeks to Overturn. Namely that relatively clear cut issues are morphed into "matters of opinion" or "matters of choice" that quite simply are not.
I share your tiredness and frustration with this. If one starts with the facts/realities/true framework in which we are operating then the propaganda opportunites would narrow significantly.
I truly appreciate you knowledge, experience, and willingness to take the effort to share them with us.
May 25, 2009 10:11 PM | Reply | Permalink
A few thoughts.
Although it requires much more concentration and time, it would be best if the Debate over the Geneva Convention relative to POWs was expanded to also include The Geneva Convention relative to the Protection of Civilian Persons in Time of War.
Iraq and Afghanistan are High Contracting Parties to both conventions, and America's self-determination of a "failed state" is not one it can rightfully make as a party in an ongoing conflict. Because of this, under Article 5 of the POW Convention, any human detained in either Afghanistan or Iraq for "having committed a belligerent act", who was subsequently stripped of the POW protections by Presidential fiat, and not as a determination made by "a competent tribunal", represent a violation of it. Still, most people seem to be unable to understand this, so a second angle of thrust should be used via the Protection of Civilian Persons convention. If these detained humans are not protected as POWs under The Geneva Conventions, then it seems transparent they are instead protected under this one. Additionally, if they are protected by it, indefinite detention without trial becomes difficult to justify:
The issue of torture should be largely separated from the Geneva Conventions, and become a third angle of attack, using the Convention Against Torture (CAT) as the vehicle. Again, this involves an extra expenditure of mental effort and time, yet it opens up three fronts on the attack. The Congressional Research Service has published some excellent studies of CAT, which can be used a references.A final thought slightly related to the unreleased pictures, because it is directly related to the Abu Ghraib abuses, and blows the "bad apples" rationalisation out of the water. Here's a relevant article of the Geneva POW Convention, I've not seen used much in arguments :
May 25, 2009 11:31 PM | Reply | Permalink
I am soooooo in agreement with that! Amen!
May 25, 2009 11:45 PM | Reply | Permalink
Actually, regarding the photos, is it not wrong to show photos of people captured in war? They should have shielded their faces, should they not?
May 25, 2009 11:49 PM | Reply | Permalink
PCA if I had the money, I would HIRE you! This is the most grounded discussion I have seen. You are truly a treasure.
May 26, 2009 12:16 AM | Reply | Permalink
One of our most valued members at the Cafe, I'd say.
May 26, 2009 8:25 AM | Reply | Permalink
This idea would seem to go against Cheney's mosaic theory.
Excellent discussion, PCA. It has helped immeasurably in my own thinking.
May 26, 2009 7:28 PM | Reply | Permalink
I slept on this comment, Rowen. And I agree with it. The laws, as written, seem crystal clear. So many of them!
Nevertheless, ours is not a system of justice like the system of Roman law - which would lead logically to conclusions, based on reading the laws. And which Judges "administer" based on these readings, such as you and I and PCA are doing right here. Ours, frustratingly, is an adversarial system. Where, indeed, there are always two sides - or at least two sides are taken in a court of law, with arguments presented, not just based on the logic of sentences in the law, but also upon precedents, previously settled cases, so called "case law". Even then, of course, once something gets to the Supreme Court, the court can, on rare occasions, reverse the precedents and, in effect, set new law. So, it all comes down to the voting of 9 Justices. Justice, who can choose to take a case or not - and if do not, then, in effect, they've accepted how the appeals court justices voted and decided. But if they do take the case, it literally comes down to a vote of 9 people.
This is the system we're stuck with. Now, I totally agree with PCA's case he's laid out. It's logical. You can demonstrate that people truly understood what the words meant at the time they were adopted. We read them the same way today. But.... how will 9 justices vote? That's our problem here! How will each side construe arguments pro and con? And what exactly will the case look like that arrives at the Supreme Court? Because I'm guessing one will get there eventually - related to this very subject matter.
Not only that, I read just this morning in my NY Times that you can pretty much predict how a case will be decided by the Supremes - simply by counting the "questions" asked when a case is presented before the court. The side that is questioned the most - and it's a sliding scale, depending on the number of questions - has the least chance of succeeding. It's a logical hunch, but it's been demonstrated by research. If an argument is more "questionable" - it's likely to fail. In any case each side of the argument bases its reasoning on precedent as well as logic in addition to the laws as written.
So we have psychological factors operating, in addition to all the logical ones, when it comes down to how a Justice will ultimately vote. And as distressing as that sounds, it is our "system" and that's what we're stuck with.
In spite of all I have said, I look forward to PCA's further information on this. And since psychological factors operate for Justices, just as much as for any of us, that means we and law professors and so on have a chance to influence the debate which is already ongoing. It's unfortunate, as your quote above describes, it may not even be logical, since laws exist. But how this debate will ultimately be decided by the Supreme Court (whether or not they take the case - because if they don't it means they agree with the appeals court decision), is anybody's guess. Although maybe some scholars of the court CAN guess. Beats me!
I suspect PCA, as realistic as he is, will agree that this is our system.
I intend to keep advocating for what is right. In every way I can advocate that. Via laws. Via logic. Via psychology. By means of writing. And talking. But in the end, I know it's not in my hands. That's frustrating. But that's a fact.
May 26, 2009 9:11 AM | Reply | Permalink
Hi TheraP, sorry to be so late getting back to your remark, but I was at work and didn't have time to respond.
While I agree that with the issues of detainees and with the issue of the release of the photographs, that the administration can continue to appeal up to the Supreme Court. That is our system, and I don't have any particular problems with that. HOWEVER, until it is appealed, the various laws and rulings are the laws and rulings.
So, the endless arguments about whether something is one thing or another, or whether Obama has the authority to simply choose to do or not do something, is not quite the right approach. Arguing "should he" or "shouldn't he" is also somewhat distracting.
The military commissions were ruled unconstitutional by SCOTUS (as I recall). If Obama changes the way they work, then that will also likely be challenged. I think it is important to reiterate in the various arguments about these issues, that there ARE laws in place, that there ARE court decisions in place (as with the photos - oleeb's post); that there ARE specific international treaties and agreements in place which the U.S. is a signatory to - and which Psuedo has laid out so explicitly and logically here. My reasoning in my comment was the tail chasing, falsely based arguments which have been the hallmark of the neo-con spin machine that the U.S. President can act unilaterally and preemptively and that everything is a "matter of opinion." I believe that grounding the arguments in the law takes the steam out of the rhetoric.
May 26, 2009 7:08 PM | Reply | Permalink
Ok, I get now where the false argument is - that the president has all this power. Versus the law. Yes, no problem there. Though all of this appears to be more sticky once you take a look at the cases than would appear at first sight. I'm looking at whether or not the Constitution supercedes, while you were arguing over whether th executive can supercede. I hadn't understood that as the post was related to Constitution and treaties.
May 26, 2009 7:46 PM | Reply | Permalink
Psuedo's post does focus on the Constitution, but the false argument does not. Sorry I wasn't clear.
May 26, 2009 8:20 PM | Reply | Permalink
Oh PCA. You pick a week end when there have been such fantastic posts. And comments. Poetry and prose and politics and song...
I hereby render unto you the Knightly Blog of the Day at this here TPMCafe Site, given from all of me to all of you.
And this was not just my idea.
YES TREATIES ARE SUPREME. YOUR GODDAMN RIGHT THEY ARE. (Blesses himself)
There is no fairness doctrine involved here. None at all. There are NOT TWO SIDES TO THIS ISSUE.
What you have really managed to do here is what was once called legislative history. But not the bullshit that George Will Spews out with his gd Federalist Papers.
THIS IS A GEM. I am bookmarking it and will copy it and put it on my harddrive
May 25, 2009 10:36 PM | Reply | Permalink
Coupled with the implications of this quote (who exactly determines when the ACLU is "wrong" that 1 time out of 10?), perhaps the most outrageous thing put out on TPM in a while.
If you really want to play Constitutional Scholar, you will have to follow and let us know how this article was received by the courts over the past 220 years as well. I appreciate the efforts you expended to write this, but it's hardly complete without the post-1787 record. Where do the courts, in 2009, today, stand on this issue?
Let me close with this other doozy:
This runs counter to the "Constitution is a living document" argument.
May 26, 2009 12:15 AM | Reply | Permalink
This is clearly thinking with faineance. You question whether a simple straight-forward interpretation of a relatively simply written Constitutional clause is correct, and then assert I must prove that it is through a copious and indeterminate quantity of Judiciary citations to substantiate it. Would it not be easier, and proper to instead provide authoritative citations along with your contention of my error? Here's a link to help to get you started.
May 26, 2009 5:47 AM | Reply | Permalink
A perfect response! After all the work you put into this excellent post, to respond with an arrogant, unsubstantiated quip, is truly disrespectful. It disrespects the thought and effort put into the post, even if one disagrees, it deserves a well documented retort, not this pompous, dismissive you-know-nothing BS. Clearly there is a lot of meat on the bone. Thanks for putting this up, PCA.
May 26, 2009 1:03 PM | Reply | Permalink
"... faineance..."
I like that.
May 26, 2009 5:07 PM | Reply | Permalink
Uh, no. Anyone with even a passing familiarity with con law knows that the Constitution means exactly what the Supreme Court says it means. Unless, of course, you're Antonin Scalia, in which case the Constitution means exactly what it says -- or, in other words, it means exactly what Scalia says it says.
Given that federal courts tend to interpret Constitutional language in the context of, y'know, specific cases and controversies, and those interpretations then become the actual meaning of that language for practical purposes, it's not really asking too much for you to provide even one Supreme Court (or, failing that, Court of Appeals) decision supporting your interpretation of the Supremacy Clause.
Otherwise, you're just pulling a Scalia.
May 27, 2009 3:46 AM | Reply | Permalink
The argument of PseudoCyAnts seems preposterous to me.
Assuming that a treaty is supreme to the Constitution, one has to ask: does that treaty REQUIRE to violate the Constitution? Is there a convention that REQUIRES us to detain certain individual? At best, PsedoCyAnts argues that there is a treaty that does not PROHIBIT.
For that matter, did we need a treaty to keeps prisoners of war without trial? Surely not. The treaty on POW made some difference: for example, while POW can be detained for the duration of the conflict, HOWEVER long, he or she has a rather lengthly list of rights and privileges; he cannot be interrogated, isolated, deprived of mail privileges, kept incommunicado etc. We emphatically violate all those prescriptions and we claim that THESE ARE NOT POWs.
And, of course, no convention REQUIRES us to keep detaining prisoners, and use whatever criteria we wish to release them, say, our Constitution.
So, according to the treaty, if we are not claiming that individuals we detain are POWs we have to adjudicate their status using whatever quaint legal system we favor. At this point the question: what is a competent tribunal and a fair process passes to our legal system, and our Constitution.
Here is a trap: the Constitution itself is vague, it merely requires to use a "due process". So, if we wish to insult our own intelligence and tradition, we can indeed do whatever we wish and call it "due process".
I understand that we offer due process if we use some customary English word for the body that conducts the process, the attire is correct and giggling is kept to the minimum. And if no such body is convened, at least someone will at some point look at the documents pertaining to the individual in question. We can invent any joke we wish, but the catch is this: the notion of "due process", however vague, is universal, and whatever jokes we will invent, they can be used on us.
May 26, 2009 1:13 AM | Reply | Permalink
First: How can Article VI; clause 2; of the US Constitution be construed to mean anything other than that lawfully enacted treaties have supremacy, when they are in conflict with Constitutional text? By any reasonable interpretation of this clause, it is impossible for a lawfully enacted treaty to "violate the Constitution". Granted, the issue has never been completely settled by the Federal Courts, and the Federal Judiciary has shown itself loath to become involved in enforcing enacted treaties, using a very narrow interpretation of the phrase: "Judges in every State shall be bound thereby", claiming this only applies to individual states' judiciary, and not the Federal Bench. The clause was also enacted mainly to act at a bar against individual states claiming supremacy over powers that were rightfully Federal in nature, yet if that was its only intent, it would have been worded using a more restrictive definition than "Supreme Law of The Land". This is not just some ancient and moldy concept from the Nation's Founding. I am aware of it being front page news twice during the 20th century. Peruse the records from a Google Search using the string: Bricker Amendment.
Second: If the Geneva Convention Relative to The Treatment of POWs does not extend its protection to the Guantanamo detainees, then The Geneva Convention relative to the Protection of Civilian Persons in Time of War does. There is no third way.
Third: The Constitution is NOT vague about due process, at least regarding criminal prosecutions. Its minimal standards are easy to deduce from the Bill of Rights. The 5th Amendment states that no person may "be deprived of life, liberty, or property, without due process of law". The category "person" is not bounded by citizenry, and is instead universal. It directly to limit the government's legitimate power. The 14th Amendment; Section 1; bound State governments to the same limitations.
The minimal standards for due process of law in criminal prosecutions can be easily deduced from the 5th and 6th Amendments:
May 26, 2009 4:11 AM | Reply | Permalink
A lovely bit of knitting you have here today, Mrs. Defarge but I am off to find a bit of goose grease. Methinks La Guillotine is about to find employment again and needs a bit of lubrication.
If we ever return to our senses and read law and history like sober men and women and not like the addled, power drunk miscreants that are our current political class, then it will stand as a testament to how close we came to the edge of the abyss that such commentary as you provide here became necessary. It was a cherished dream of our recent past that the depravities of modern warfare would be constrained by new compacts, trials and treaties and for three score years it was by acclamation the duty of public men to hold to that dream. Then something happened and voices arose to insist “No it was better before – before Nuremburg, before the U.S. Constitution, before Magna Charta.” It is madness of course, a plague and it kills indiscriminately and both in reality and in the mind to such a point that one might fairly echo the comment of Jean Paul Sartre when he described life in France under the German occupation. “We had lost all our rights beginning with the right to speak. Because Nazi venom had seeped into our very thoughts, every true thought was a victory.” We shall shortly see whether a true thought like the one you present here holds the day or will all succumb to La Peste, the plague.
May 26, 2009 2:52 AM | Reply | Permalink
I wish that Americans would comprehend the irony inherent within the Tyranny of Mad Georges:
May 26, 2009 6:32 AM | Reply | Permalink
Boy have you nailed it! I wonder how many people realize where this list comes from....
May 26, 2009 8:29 AM | Reply | Permalink
Yeah! Where DOES that originate?!?!?!?
It is brilliant!
May 26, 2009 1:10 PM | Reply | Permalink
Declaration of Independence:
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
May 26, 2009 1:38 PM | Reply | Permalink
oh. (Blesses himself)
Thanks, DD.
May 26, 2009 2:07 PM | Reply | Permalink
You're such a good egg, Gregor Z! :)
May 26, 2009 4:08 PM | Reply | Permalink
Note the semicolon and 'or' and 'in every State' and 'of any State'.
"Clearly, lawfully enacted treaties possess supremacy within their scope over Constitutional text. "
Uh... That section is about State Constitutions or Laws, it says that individual States (or their Judges) cannot unilaterally usurp a national Treaty. You're slipping from US Constitution to State issues.
It's a limitation on States' Rights.
I will grant that the 'or' could be ambiguous ... except for the semicolon and mention of State judges prior to it.
May 26, 2009 6:38 AM | Reply | Permalink
Why did you skip the part about Supreme Law?
Many contemporary conservatives believe that a treaty can contravene Constitutional text. That is often a reason they give for opposing treaty ratification. The Senate, in its advice and consent role over treaty ratification, seems to also hold this view, which is why many recent treaties ratified by the Senate have the reservation attached that they are not self-executing, and must first have enabling Congressional legislation enacted.
May 26, 2009 8:08 AM | Reply | Permalink
I'm less interested in the false beliefs of many conservatives than in the correct reading of the text, PCA.
The idea you are following is that a Treaty amounts to a Constitutional Amendment.
I didn't skip 'supreme' (I showed how it was qualified by the rest of the sentence - it is about a limitation on States' Rights).
May 26, 2009 3:19 PM | Reply | Permalink
eds speaks my mind, because claiming that a treaty can nullify the Constitution is simply not supported by the text of Article VI, which is clearly intended to make federal law supreme over state law, and not treaties over the U.S. Constitution. Any other view produces the absurd conclusion that the US can, in a treaty with other countries, nullify the Bill of Rights.
Even if Article VI did conflict with the Bill of Rights, then the Bill of Rights would prevail, because those rights are contained in amendments to the Constitution and those amendments necessarily amend or restrict anything in the original Constitution that is inconsistent with those rights. The 5th Amendment's declaration that "No person ... shall ... be deprived of life, liberty, or property without due process of law" restricts the power of Congress to adopt treaties that are inconsistent with due process of law.
A final point is that, although the Geneva Conventions might *allow* the US to detain foreign nationals, it does not *require* us to detain them, and so we are free to interpret our own Constitution in a way that prohibits us from detaining them indefinitely. (Whether our Constitution does apply to the detention of foreign nationals is a separate issue.)
May 26, 2009 11:55 AM | Reply | Permalink
I'm glad we have some areas of agreement! :-)
May 26, 2009 3:22 PM | Reply | Permalink
See Rick Cass's post below.
May 26, 2009 3:55 PM | Reply | Permalink
I sorta wish I could make sense of Rick's comment. It's not just the lack of paragraphs, the text is somehow equally dense and hard to read.
What do you make of his comment?
May 26, 2009 6:24 PM | Reply | Permalink
Thanks for the interesting and well researched post. Another view may help with the discussion. As the Constitution granted a few select powers and duties to the federal government, and arguably reserved the bulk of governmental duties to the states and the people, one might read the Constitution to require that the subject matter of treaties be limited to those matters entrusted to the federal government. Thus, the police powers of the state, the regulation of public health, criminal conduct and tort law are left to the states, and absent events on federal property, or interstate commerce, and the like, the federal government has no right to legislate. If the feds cannot legislate, then they cannot constitutionally effect any incursion upon the powers of the States or the people, whether by legislation or by treaty.
Even though the expansion of federal power has progressed under the Commerce Clause, that doesn't mean that all of that expansion was constitutional. There are many instances where laws passed by Congress to aid the States in enforcing their own law have become the controlling law, tying the hands of states who wished to change their criminal law. Likewise, the federal government has intruded in the area of tort law, by use of the "preemption doctrine" in matters which were wholly left to the States under the Constitution.
The Constitutional provision in question would seem to mean that any laws enacted not within the "pursuance" of the Constitution are not entitled to any preemption, and that any Treaty entered into in violation of either the Bill of Rights or outside the scope of the limited powers granted the federal government are void.
While I understand the position taken by the diarist that the views of those arguing the pros and cons of the Constitution at the time of its adoption are entitled to weight, they are, however, arguments made in the heat of battle, and thus often took things to their logical extremes in order to make a point. One must ask whether a treaty with a foreign country or alliance denying the Courts of the States from enforcing the First Amendment, or like provisions of state constitutions would be the Supreme Law of the Land, even if fully ratified.
May 26, 2009 10:22 AM | Reply | Permalink
No. The Courts would overturn it if it wasn't Constitutional.
What, exactly, do you think is un-Constitutional abut Geneva?
May 26, 2009 9:08 PM | Reply | Permalink
Rushing, but marking. . .
(Good one)
May 26, 2009 11:36 AM | Reply | Permalink
One thought--as to why the Constitution -cannot- be read that way. The Bill of Rights -amended- the constitution's text. As a later in time enactment, things like the fourth amendment, the first amendment, and later the fourteenth) prevent the federal government from either enacting statutes or adopting self-executing treaties that purport to do this. Thus, statutes enacted pursuant to treaty obligations that abridge free speech rights receive first amendment scrutiny (see Golan v. Holder), etc. While it is true that the treaty power can be used to support Congressional enactments that would have been struck down due to, for example, the limits of the interstate commerce clause (see, e.g., missou v. holland (bird migration treaty), I don't think you can read this provision to obviate affirmative limitations.
May 26, 2009 11:57 AM | Reply | Permalink
I've considered that argument as well. Which is why I keep wondering if a constitutional conflict automatically arises here. On the other hand, Geneva came after the Bill of Rights. And they are amendments, so too does a treaty seem to be. But that's my thinking. And I'm interested if there are legal precedents as to how to sort this out.
May 26, 2009 12:06 PM | Reply | Permalink
The way I looked at it, the Geneva Convention's irrelevant to this particular issue. It is a treaty that the feds agreed to, but the feds can agree to no more nor less than their constitutionally enumerated powers permit. Geneva is not a constitutional amendment.
Suppose the US and china agreed to a treaty that prohibited criticism of the chief executive based on the need for internal stability, and that such a treaty was self-executing. That treaty would be unconstitutional. The feds simply didn't have the power to do it.
May 26, 2009 2:14 PM | Reply | Permalink
Ok. That's what I had originally been thinking, till PCA's post, when it appeared as if the Constitution could literally be "amended" (whatever you want to call it - as a Treaty would supercede the Constitution - which honestly I never quite believed would just go unchallenged, and thus it would have to end up in the courts)
What makes that clear is the case cited below. And I'm sure there must be others.
For the record, here's a link to the legal memo Ashcroft used to "opt out" of Geneva:
http://news.findlaw.com/wp/docs/torture/jash20102ltr.html
May 26, 2009 4:05 PM | Reply | Permalink
I've commented on the memo downthread. What a disaster these bush folks were! Looking to rule out Geneva in order to avert court litigation!!!
May 26, 2009 4:42 PM | Reply | Permalink
Good post. Seems to me this has been very clear from the very beginning of the debate---that treaties are the Supreme Law of the Land. But politicians being inconvenienced and those who would rather avoid the consequences of the law want to convince people otherwise. In this case, the great thing is the absolute clarity of the Constitution on this point. There really is but one way to interpret it.
Parentheticaly, I think Sotomayor will staunchly defend the supremacy of our treaty obligations on the high court regardless of political conseqences for any administration.
May 26, 2009 12:14 PM | Reply | Permalink
We sure should never have been committing war crimes! That would never have conflicted with US law and should absolutely be prosecuted.
May 26, 2009 4:15 PM | Reply | Permalink
Yep! Agree 100%
May 26, 2009 5:01 PM | Reply | Permalink
This is attributed to an Old Whig, but I think it must have been lifted from Nostradamus. It is as though he was referring to the present.
May 26, 2009 12:32 PM | Reply | Permalink
Them Whigs were kinda impressive, yez.
May 26, 2009 8:59 PM | Reply | Permalink
In a case holding that the Uniform Code of Military Justice could not be applied to a civilian relative of a member of the armed forces traveling with the armed forces overseas, the Supreme Court stated:
Reid v. Covert, 354 U.S. 1, 16-17 (1957) (emphasis added; footnotes omitted).
May 26, 2009 1:04 PM | Reply | Permalink
I'm reaching back 10 years to my Constitutional and Administrative Law classes, but I think you're right and PCA is wrong. Treaties are enforceable to the degree they are in concert with the Constitution; a treaty in violation of constitutional principles is as subject to judicial nullification as any law passed by Congress.
May 26, 2009 3:20 PM | Reply | Permalink
Again, what is un-Constitutional about Geneva?
May 26, 2009 9:23 PM | Reply | Permalink
I understood PCA's point to be that treaties are not subject to constitutional challenge once they are ratified. I was making a general point, not trying to suggest that Geneva was unconstitutional.
Although, as I think about it, there's probably some Yoo-type "scholar" who could argue that the Conventions are an unconstitutional restriction on the Commander-in-Chief's ability to wage war unfettered. Or some such nonsense.
May 27, 2009 12:16 AM | Reply | Permalink
This is the kind of thing I was referring to upthread, that likely there was "case law" - and with that, you've launched us into a thicket of a type I kind of figured was ahead of us.
May 26, 2009 3:59 PM | Reply | Permalink
Thanks, it's been a long time since I last came across Reid v. Covert. My recollection is that the first time was related to SCOTUS History (tumultuous times early in the Warren Court-this decision flopped to decisions made just 1 year before). The 2nd time was when I was reading about The Insular Cases, as this decisions implied at least a partial reversal of them, although succeeding decisions have not cleared this up. (see: Examining Board of Architects, Engineers & Surveyors v. Flores de Otero (1976) and United States v. Verdugo-Urquidez (1990))
Reid v. Covert was decided 4 + 2 concurrences - 2. Neither concurrence even mentioned US Con. Article VI. The dissent explicitly stated that Article VI was not even relevant to the case, and by implication, charged Black had exercise judicial activism by broadening the scope in order to include it:
Additionally, Black misstated the history of the debate about Article VI's reach in the Consitutional ratifying debates:
What about the citation to George Mason at The Virginia Ratifying Convention, which I cited initially?
I believe that one of early Presidents (Madison maybe?) did imply there were circumstances when it was proper for an international treaty to override the Constitution, but I need to dig a bit to see what memory is serving me. As time and health allowe, I'll follow-up with a post.
May 27, 2009 1:47 AM | Reply | Permalink
I simply want to say, for the record, what wonderful thread this is. We can all learn a lot. We need to know these things. The more we know the more we can protect ourselves from any who seek to manipulate us - as occurred under bushco.
And no matter how much we educate ourselves about these issues, we still have no idea what may or may not be set up in terms of any detentions, under what auspices it might be structured (I wish there could be some type of international mechanism if it has to be anything at all), nor what the courts would have to say about any of this.
May 26, 2009 4:12 PM | Reply | Permalink
Terrible memo. But inside the memo by Ashcroft is a Supreme Court case cited that seems to have decided that a President has authority to decide a treaty does not apply.
Here's the link:
http://news.findlaw.com/wp/docs/torture/jash20102ltr.html
Clark v Allen is cited with Ashcroft's words:
Horrifying! But that's what Ashcroft wrote (2/1/02).
They specifically were thinking to do this, according to the memo - in order to protect courts from having jurisdiction!!!! (if they ruled that Geneva applied)
So their intent was to rule Geneva did not apply in order to avert courts ruling on whether Geneva had been adhered to!!!
Somebody needs to look up this case! The Ashcroft memo is only two pages long. Worth the read. Makes me want to take up swearing!
May 26, 2009 4:41 PM | Reply | Permalink
They base it on Afghanistan being a failed state and thus, in their view not a signatory. This whole thing makes me sick!
May 26, 2009 4:43 PM | Reply | Permalink
The Ashcroft letter refers to the Third Geneva Convention, which is the most famous convention and deals with the treatment of prisoners of war.
What the Bush administration seemed determined to overlook is that there is a Fourth Geneva Convention, which deals with the rights of civilians "in the hands of" an invading army, and which would appear to be relevant to our treatment of the detainees at Guantanamo Bay who were seized during our invasion of Afghanistan.
May 26, 2009 6:43 PM | Reply | Permalink
I think one needs to look at WHY that opinion was offered, why it was solicited. That is, was Bush&Co paranoiac about split legal hairs down the line (Ashcroft's ostensible point), did they have good reason not to extend Geneva "courtesy" to all Taliban fighters who were not obviously and egregiously unlawful combatants, or what? We can guess that it has to do with what people call "torture".
Afg. was clearly not a failed state before the US invaded, so Ashcroft's whole point in re #1 is bogus. It's also possible that the cite given is not fully determinative, and of course it doesn't rule out impeachment.
The idea that you can invade a country and then deem a resistance movement to be unlawful solely on the dictate of the head of state of the invader is of course ludicrous.
May 26, 2009 6:22 PM | Reply | Permalink
Good that we are arguing about this, it beats arguing about whether we can torture.
May 26, 2009 5:38 PM | Reply | Permalink
PCA, this is a bit off topic from this thread but does pertain to your stated preference for military tribunals:
http://en.wikipedia.org/wiki/Ex_parte_Milligan
Ex Parte Milligan: "a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional."
And elsewhere.
May 26, 2009 7:31 PM | Reply | Permalink
Wrong, wrong, wrong!
The notion that the Founders would draft a clause to a constitution that would permit the constitution to negate itself is patently ridiculous on its face.
You completely misread the Supremacy Clause; more specifically, you do not understand semi-colons. Your truncated citation indicates this.
I can't believe I just read that. Nothing could be further from the truth. Here is the actual text:
First of all, notice how the clause is organized into phrases separated by semi-colons. It deals with the legal organization of the Constitution, US Law, treaties, state constitutions, and state law.
Second, you are reading the last phrase wrong. The "Constitution or Laws of any State" is a clear reference to STATE CONSTITUTIONS. It is saying that the US Constitution is supreme over state constitutions and laws. The Founders would have been inordinately stupid to establish a Constitution that would allow itself to be superseded by any international treaty.
Along with Article I, Section 9, the Supremacy Clause forms the basis for the new federal system of government after the Articles of Confederation. The point of the clause is to subordinate state law to the Constitution.
Lastly, in terms of the structure of legal hierarchy established by the Supremacy Clause, a treaty has the same legal status and force as a law passed by the US Congress. This means that a congressional law can overturn a treaty the same as a law can overturn a previously passed law. (This is bad diplomatic practice, but it is constitutionally permissible.) Most importantly, as with congressional statute, a treaty cannot supersede the Constitution.
The only "supremacy" of congress-passed law and international treaty is that they can supersede state constitutions and state law. You are totally and completely wrong in your analysis of the Supremacy Clause.
May 26, 2009 10:56 PM | Reply | Permalink