Extraconstitutional treaties
From Free Talk Live
- This topic was discussed on the February 2, 2006 show.
In 1920, the supreme court decided Missouri v. Holland; the ruling held that the Constitution gives the Federal Government the authority to enact treaties even if those treaties are unconstitutional. In short, if a treaty is adopted, and that treaty says that, for instance, no one may use gasoline anymore, or any other provision possible, that it is fundamentally constitutional. This effectively gives the Senate and President of the United States the power to amend the Constitution outside of the normal and difficult process requiring the agreement of a large number of people.
A constitutional amendment requires ratification from three-quarters of the state legislatures or ratification by three-quarters of the state constitutional conventions, after another lengthy process required to formally propose the amendment. Adopting a treaty requires only the advice and consent of the Senate and a signature of the President, a significantly easier task. In response, the Bricker Amendment was filed in the 1950s; this amendment would have required any treaty passed to be with in the authority already granted to the Federal Government. The proposed amendment read:
- A provision of a treaty which conflicts with this constitution shall not be of any force or effect.
- A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.
- Congress shall have power to regulate all executive and other agreements with any foreign power or international organization. All such agreements shall be subject to the limitations imposed on treaties by this article.
- The Congress shall have the power to enforce this article by appropriate legislation.
At the time, supporters of the amendment included the American Bar Association. Notable groups opposed to the amendment were the ACLU, American Jewish Congress, Americans for Democratic Action, and American Association of University Women. Proponents for the amendment were unable to drum up enough support and it was never ratified.
