NHELD does
not believe in fear mongering. NHELD
believes in the distribution of facts so that individuals can formulate their
own opinion. Through this bulletin and
the two which will follow, NHELD hopes to distribute facts about the United
Nations’ Convention on the Rights of the Child.
NHELD also offers its opinion in this bulletin about the possible
effects of
Did You Know ? The Supreme Court has “interpreted” the meaning of the Constitution
regarding the effect of treaties in a number of cases throughout our history.
Taking the
time to read those cases is most edifying. You can find Supreme Court cases at:
http://www.supremecourtus.gov/
The question remains: What effect
does a treaty have on state law when the treaty conflicts with state law? (Put another way: To what extent may a treaty
authorize national regulation of local affairs not otherwise reachable under
the specific grants of power in the Constitution?)
The Supreme
Court has addressed this issue in certain of its cases.
In one case,
Missouri v. Holland in 1920, the Supreme Court was confronted with an
effort by the state of Missouri to prevent a United States game warden from
attempting to enforce a Migratory Bird Treaty Act (a federal statute implementing a
treaty) on the ground that the statute was an unconstitutional interference
with the rights reserved to the States by the Tenth Amendment.
The Supreme
Court stated some insightful principles in reaching its decision. It stated
that,
“Acts of
Congress are the supreme law of the land only when made in pursuance of the
Constitution, while treaties are declared to be so when made under the
authority of the
The Court also said,
“It is said that a treaty cannot be valid if
it infringes the Constitution, that there are limits, therefore, to the treaty
making power, and that one such limit is that what an act of Congress could not
do unaided, in derogation of the powers reserved to the States, a treaty cannot
do.”
In this
case, however, the Supreme Court found no such limit and held that the treaty
and the federal statute must be upheld.
(This is
similar to the logic in Pierce and Yoder, etc. where the court makes
encouraging statements about the rights of parents, but, in the end, upholds
the right of the state to regulate parental instruction.)
In other words, if a treaty or a
federal statute implementing a treaty conflicts with a state law, and a court
must “interpret” the law, the court could decide that because of the supremacy
clause, the treaty reigns supreme and the state law becomes null and void.
There are
other questions to ask: Whenever the
federal government cannot constitutionally adopt a law to affect a state issue,
could the federal government overcome that obstacle simply by making a treaty
with a cooperating foreign government?
Will the courts effectively scrutinize the good faith of a President and
the Senate in entering into such treaties in order to uphold state law?
In the
1950’s these questions were being asked.
There was concern that any and all constitutional limitations could be
overridden simply by the federal government enacting treaties. In fact, at that
time, there was an effort to amend the Constitution to prevent such situations.
It was popularly known as the “Bricker
Amendment.” (You can find articles
about the Bricker Amendment at http://www.senate.gov/general/search/search_cfm.cfm?q=Bricker+Amendment&site=default_collection&num=10&filter=0&x=12&y=7
or by doing your own web search.) The Bricker Amendment included the
following key term: “A provision of a treaty which conflicts with this
Constitution shall not be of any force or effect.”
Another part of the Bricker
Amendment was aimed at preventing the enlargement of federal powers through
treaties. It stated, “A treaty shall
become effective as internal law in the
One article, www.senate.gov/artand
history/history/resources/pdf/richard_nixon.pdf, describes the history of the Bricker
Amendment as follows:
“In 1951, Republican Senator John W. Bricker of
would have drastically curtailed the ability of the
president to obtain treaties and executive agreements with other
nations. Bricker's immediate purpose was to prohibit
President Truman from entering into agreements such as the
United Nations Convention on the Prevention and
Punishment of Genocide, for fear that it would compromise the
sovereignty of the
Congress in making foreign policy. Even with a Republican in the White House, Bricker
refused to back away from
his amendment, offering it as the first order of business
in the new Congress, with the support of almost every
Republican senator. Eisenhower, however, believed the amendment would
severely restrict the necessary powers of
the president and make the nation "helpless in world
affairs." Rather than confront his own party leadership, he
hoped to delay action on the measure in order to gradually
chip away at its support. He sent Nixon and others to
work with Bricker on compromises and suggested a
"study committee," with Bricker as its chair, to come up with an
agreeable alternative.17 Bricker, however, would not yield on the substance of
his amendment. Finally, in 1954, after
much wrangling, the administration convinced Democrat
Walter George of
substitute. On the crucial roll call, the substitute received a
vote of 60 to 31, falling one short of the two-thirds
majority necessary for passage of a constitutional amendment.
Bricker tried to revive his amendment, but too many
Republicans had changed sides.18”
In fact, those who supported the Bricker
Amendment used the quotes from the
Even as the Bricker
Amendment was debated, the Supreme Court continued to “interpret” the
Constitution and its provisions for treaties.
In Reid v. Covert,
(1955), one part of the majority opinion contained a passage responsive to some
of the concerns voiced by supporters of the Bricker Amendment. In that case, the government argued that the
challenged statute could be sustained “as legislation which is necessary and
proper to carry out the
At that time, it would
appear that the Court’s decision placated the concerns of some who supported
the Bricker Amendment.
The Supreme Court still
wrestles with these issues, however, and in other cases has upheld the decision
in Missouri v. Holland.
As recently as 2004 in United States v.
Lara, the court stated,
“The treaty power does not
literally authorize Congress to act legislatively, for it is an Article II
power authorizing the President, not Congress, "to make Treaties."
That is a troubling
statement if it is taken to mean that Congress can “deal with matters” that
Congress has no specific grant of Constitutional power with which to deal with
them.
Even Justice Thomas in the Lara case
had concerns about the majority opinion, stating,
“The treaty power does not,
as the Court seems to believe, provide Congress with free-floating power to
legislate as it sees fit on topics that could potentially implicate some
unspecified treaty.”
Nonetheless, Justice Thomas concurred with the
majority in upholding the treaty and federal law in that case.
The one common theme in these cases appears to be that
treaties, and the federal laws that implement their provisions, must comport to
the provisions of the
One must also consider the
fact that the Supreme Court, as all courts do, has the power to override its
own decisions. It has done so in the
past, and can do so in the future. In
fact, the Lara case appears to come close to doing just that when the
court states that treaties can authorize Congress to “deal with” matters it had
no authority under the Constitution to “deal with” before enactment of the
treaty.
How does the current treaty, the United Nations
Convention…., affect federal and state law?
We strongly
suggest that you read all of the provisions of the Convention on the Child in
its entirety. To do so, you can go to the following: http://www.unhchr.ch/html/menu3/b/k2crc.htm
In
our next and last bulletin we will review the Convention on the Rights of the
Child and the concerns that we have with it.
Attorney Deborah Stevenson - Executive Director of National Home
Education Legal Defense. – www.nheld.com or email : info@nheld.com
Judy Aron -
Director of Research, NHELD – imjfaron@sbcglobal.net