Sunday, April 05, 2009

A Little Knowledge?

I Am Not A Lawyer (oh, so very not) but I have always read the various warnings to be found on the 'Web about how "treaties trump the U. S. Constitution" with no little skepticism. Didn't have a reason, the idea just didn't sit right; it is surely not what the Framers intended. Turns out there's some basis for that grain of salt: Reid v. Covert.

Back in 1957, the Supreme Court averred: "[T]his Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty...."

Mind you, such decisions are not written in stone. It is, however, one more impediment to the kind of tricky end-runs around the Constitution and especially the Bill of Rights that folks worry over.

9 comments:

pops1911 said...

Don't worry about Constitutionality - BHo will just say it's his interpretation of it. After all he is a 'constitutional scholar'!!!!

So far he has blown away the 1st, 2nd & 4th Amendments & nobody has called him on it. So kiss it goodbye.

Popgun said...

Of course, there's nothing in the Constitution that requires separation of church and state, either, but everybody thinks there is.

-Popgun

Roberta X said...

Popgun: "Everybody" including that poor, deluded liberal, Thomas Jefferson. You'll find the phrase you used in one of his letters, in which he is assuring a Baptist congregation of their religious freedom under the Federal Constitution.

This is a wedge issue, one used to divide those conservative and/or libertarian individuals holding strong religious -- and specifically, Christian -- faith from those who do not and if we fall for it, we play into the hands of statists and so-called "Progressives."

I don't see anyplace where individual members of the the Federal government were kept from holding religious belief and it is a matter of historical record that until the 14th Amendment was held to incorporate some of the protections in the Bill of Rights against state governments, not only were the individual States not barred from establishing a religion, at least one (Connecticut) did not disestablish its State church until 1818 and another (Mass.) kept a de facto State church until 1833.

Requiring the Feds to stay out of the church business in no way obliges members of the government to be impious or hostile to religion.

The First Amendment stands between us and sharia law; we tamper with it at our peril.

Mark Alger said...

Not only do treaties not trump the Constitution, but neither (contra nearly any lawyer trained in the last 50 years) does case law.

But good luck winning with that argument in court. If you could, people wouldn't have to keep running to the Supreme Court to re-establish natural rights.

M

Anonymous said...

But Jefferson, nice guy and all, was a deluded liberal, and I sure wouldn't want the Republic governed by [all] his collected letters. Sadly for the purity of the argument, strong voices claim to represent believers on presumaby secular issues, and don't understand when they are not seen to help their cause. Some secular issues are religious, or can be presented that way, and we once gave up close to a million lives trying to cipher that one out.

It takes one dog-pissed skinhead in Pittsburgh to knock the pins out from under the Constitution. Courts are malleable. Legislators, even more so. We're slowly learning to live with that, and I'm not enjoying it a bit.

Strongly endorsing your point that believers are a "necessary good," it's still revealing to note that the "generation of the revolution" devoted an inordinate amount of public-policy effort to disestablishment, often transparently to eliminate the influence of the First Estate. Dispossessed clergy found other outlets--in the parties, in academia, and in nascent "liberal" movements--from which perch their intellectual descendants now mock individual christians as misguided, if they do not accept their guidance. Tricky, tricky, dangerous trafficking in souls.

homebru said...

Courts are malleable. Legislators, even more so.

Interesting phrase, when one remembers the alternate meaning: changes shape when beat upon by a hammer.

TJP said...

"[T]his Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty"

Yup, you don't need to be a lawyer to understand English:

Article VI Excerpt
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.


Of course, there really isn't an "end run" or any sort of cloak-and-dagger nonsense at all; our public servants openly and unabashedly violate the Constitution. They don't do it because their evil. They do it because the people demand it.

TJP said...

"they're"

Goddamn homophones.

reflectoscope said...

Courts are malleable. Legislators, even more so.I'd be more curious to investigate their ductility, but to each their own.

Jim