Bulletin #55    United Nations Convention – Part 2                                   08/31/2006


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 United States’ ratification of that Convention.  We hope that readers will further investigate this issue and enlighten others, in turn. We broke this up into three parts because this would otherwise be a rather lengthy bulletin.  This first part dealt with definitions, and this part will deal with Supreme Court cases which addressed conflicts between treaties and federal and state laws. The issue is complicated, has some historical background, and requires some time to read through and understand.  We hope that you will take the time because this is a very important issue, affecting our children, and our sovereignty.


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 United States.” 


 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 United States only through legislation which would be valid in the absence of treaty.”


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 Ohio had introduced a constitutional amendment that

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 United States. More generally, the Bricker amendment aimed to increase the influence of

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 Georgia to offer a much less stringent

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 Missouri case to back their argument, and even used portions of the charter of the United Nations to describe the concerns they had that the Constitution would be undermined.

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 United States’ obligations under the international agreements.”  The Court responded, “The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”  The Court also found nothing in the supremacy clause “which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution….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.”   The Court also commented on its earlier decision in the Missouri case stating, “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the national government and the Tenth Amendment is no barrier.”  Basically, the Court held that the federal government could enact federal laws pursuant to a treaty but could do so only in accordance with all the limitations imposed by the Constitution.

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." U.S. Const., Art. II, Sec. 2, cl. 2. But, as Justice Holmes pointed out, treaties made pursuant to that power can authorize Congress to deal with "matters" with which otherwise "Congress could not deal." Missouri v. Holland, 252 U.S. 416, 433 (1920); see also L. Henkin, Foreign Affairs and the U.S. Constitution 72 (2d ed. 1996).”

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 United States Constitution. 

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://www2.ohchr.org/english/law/crc.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