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Treaties do not override the Constitution
In the same discussion Madison said: “Here, the supremacy of a treaty is contrasted with the
supremacy of the laws of the states. It cannot be otherwise supreme.” That is, a treaty cannot in
any other manner or situation be supreme.
Thomas Jefferson: “I say the same as to the opinion of those who consider the grant of treatymaking
to be boundless. If it is, then we have no Constitution.”
In anticipation that our president may sign one or more treaties that conflict with the
U.S. Constitution’s limited grant of power, several voices of alarm are contending that a treaty
can override, or in effect amend, our Constitution. Although that view has gained some currency,
it is a myth that contradicts the intent of those who framed the Constitution. And it violates any
reasonable interpretation of that document.
Origin of the Myth
The frightful idea that U.S. treaties with foreign nations supercede the Constitution has been
regularly promoted since the Eisenhower era.1 It was given a big boost in 1952 when Secretary
of State John Foster Dulles, a founding member of the Council on Foreign Relations (CFR),
made the following statement:2
… congressional laws are invalid if they do not conform to the Constitution, whereas
treaty laws can override the Constitution. Treaties, for example, can take powers away
from Congress and give them to the President; they can take powers from the states and
give them to the Federal Government, or to some international body and they can cut
across the rights given the people by the Constitutional Bill of Rights.3
It would be hard to find a more preposterous assertion. Sadly, however, many citizens have been
led to believe that treaties do override the Constitution. Could anyone really think our founding
fathers spent four months in convention, limiting the size, power and scope of government, and
then provided for their work to be destroyed by one lousy treaty?
But one might object, what about Article VI? Article VI establishes the supremacy of U.S. laws
and treaties made within the bounds of the Constitution. It is called the Supremacy Clause,
because it places federal laws and treaties that are made pursuant to the Constitution above state
constitutions, laws. and treaties.
Some Important History
This was needed because, contrary to their agreement under the Articles of Confederation,
certain states had violated their trust and entered into treaties with foreign powers. During the
convention, Madison said: “Experience had evinced a constant tendency in the States to encroach
on federal authority; to violate national Treaties, to infringe the rights and interests of each
other.”4
State-made pacts often conflicted with peace and trade treaties wanted by the Confederation
Congress for the benefit of all thirteen states, making it hard for Congress to consummate better
agreements with other nations. This also led to fierce contention between the states in their effort
to monopolize the import of goods from Europe and the Indian tribes. But more serious dangers
arose in matters of security, for should one state be at war with a foreign power while a sister
state honors its peace agreement with the same enemy, the security of the entire Confederation
would be threatened.5
In an effort to head off such dangers, the Confederation Congress frequently attempted to nullify
state-made treaties in the state courts (there were no federal courts). But as might be expected,
the state judges ruled inevitably in favor of their own states, pursuant to the state laws and
constitutions.
The 1787 Convention corrected that problem by making certain only federal treaties would be
recognized as valid. In this light, it is not hard to understand why paragraph two of Article VI is
worded as follows:
This Constitution, and the laws of the United States which shall be made in pursuance
thereof, and all treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land, and the judges in every state shall be bound
thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
Upon ratification of the Constitution, the state treaties were nullified. Thereafter, only federal
treaties were recognized as supreme, regardless of any remaining state provisions to the contrary.
Moreover, under the new Constitution the founders established a Supreme Court, granting it
original jurisdiction over treaty controversies, and thereby removing from state judges
jurisdiction over treaty cases. In addition to quelling strife among the states, Article VI
accomplished a major objective of the Convention, mainly that of placing the United States in a
position to speak to the world with one voice.
United States treaties are created when proposed by the President, with the advice and consent of
the Senate. The power of the President and the Senate, in their treaty-making capacity, was never
intended to be a power greater than the Constitution.
Citizens who met in the state ratifying conventions (1787 to 1790) to examine with great care the
provisions of the proposed Constitution had a correct understanding of the Supremacy Clause.
During the ratifying debates, James Madison answered questions regarding the new national
charter and commented on the extent of the treaty-making power under Article VI:
“I do not conceive that power is given to the President and Senate to dismember the
empire, or to alienate any great, essential right. I do not think the whole legislative
authority have this power. The exercise of the power must be consistent with the object of
its delegation.”6
In the same discussion Madison said: “Here, the supremacy of a treaty is contrasted with the
supremacy of the laws of the states. It cannot be otherwise supreme.” That is, a treaty cannot in
any other manner or situation be supreme.
Thomas Jefferson: “I say the same as to the opinion of those who consider the grant of treatymaking
to be boundless. If it is, then we have no Constitution.”
But we do have a Constitution. Its life and viability depend entirely on the small number of
citizens who 1) understand the document, and 2) who equally understand the forces at work to
destroy it. At this point enough time has passed, and enough false teachings have been
promulgated, to cause modern Americans to fall for the treaty power ploy. It is not surprising
that John Foster Dulles, a ranking member of the CFR, should in 1952 circulate the treaty-power
heresy that yet prevails.
It is time for serious reflection on the words of Edmond Burke, “The people never give up their
liberties but under some delusion.” Those who seek to preserve the sovereignty of the United
States must work energetically to expose the Dulles delusion — the ridiculous idea that treaties
have intrinsic powers greater than the Constitution.
1 In decades immediately prior to the Dulles speech, Supreme Court decisions had already begun to
enunciate the idea (see, for example, Missouri v. Holland in 1920 and United States v. Pink in 1942).
2 Dulles actually made this statement during a speech in Louisville on April 2, 1952, shortly before
Eisenhower appointed him Secretary of State.
3 Quoted by Frank E. Holman, Story of the Bricker Amendment, (New York Committee for Constitutional
Government, Inc., 1954), pp. 14, 15.
4 The Records of the Federal Convention of 1787, Farrand, Vol. I, p. 164.
5 Benjamin Franklin’s Plan of Union, America, Vol. 3, p. 47.
6 Debates on the Federal Constitution, Jonathan Elliot, ed., second edition, Philadelphia, J.B. Lippincott
Company, 1907, Vol. III, p. 514.
Don Fotheringham is considered one of the leading authorities on U.S. Constitution history and is an in demand guest lecturer on the subject.