U.S. Constitution vs. U.N. Charter

Not surprisingly, there are highly-educated individuals in America who believe that by signing the U.N. Charter the United States ceded its sovereignty to the United Nations.  For example, a Professor by the name of Thomas Franck wrote an op-ed piece back in the 1990s in which he claimed that Congress no longer has the authority to declare war.  I suspect that those who, like Professor Franck, believe the U.N. Charter takes precedence over the Constitution actually know better but are guilty of stating what they wish to be the case rather than what is the case.

There is no question that by signing the U.N. Charter the United States accepted certain new responsibilities and should fulfill those responsibilities, but only when doing so does not threaten the interests of the U.S. or conflict with any aspect of the Constitution. The “Treaty Clause” of the Constitution (Article II, Section 2, Clause 2) reads: “The President…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”  This was one of the protections against treaties superceding the Constitution build into the document by the Framers.  Another is that any treaty that violates any aspect of the Constitution is by definition null and void.

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Those who believe that treaties, once passed, take precedence over the Constitution typically rely on another clause: the “Supremacy Clause” (Article VI, Clause 2).  This clause reads 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, anything in the constitution or laws of any state to the contrary notwithstanding.”

Those who use the “supremacy Clause” as their justification for believing that treaties such as the U.N. Charter take precedence over the Constitution are guilty of interpreting the Constitution in an overly simplistic and perhaps even opportunistic manner.  As is often the case in determining what the Framers intended by their words, it is necessary to consult the Federalist Papers as well as the documents that grew out of the ratification debates.  The Constitution must be interpreted on the basis of the principles that guided its ratification because any straying from these principles would have undermined ratification and there would be no Constitution.

In Federalist 64, John Jay writes about this issue.  After describing why opposition to ratification was unfounded when based on the fear that treaties might supplant the Constitution, Jay went on to state “…who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct.  The idea is too gross and too invidious to be entertained.”  Jay was certainly correct for the time in which he wrote these words, but one might reasonably question if such a proposition is still “too gross and too invidious to be entertained.”  American presidents and the Congress have done many things the Framers could not imagine would ever be done by responsible public servants who have the best interests of our country at heart.  What Jay and the Framers apparently did not envision was presidents and members of Congress who might not have America’s best interests at heart.

However, Jay and the Framers did understand human nature.  They were not naïve men by a long shot.  Consequently, Jay went on to write in Federalist 64 concerning the possibility that a president and Congress might attempt to supplant the Constitution with foreign treaties: “But in such a case, if it should ever happen, the treaty so obtained from us would, like all fraudulent contracts, be null and void by the law of nations.”  By “law of nations” Jay was referring to the foundational principles of what is considered right and just among nations.  No nation would consider it right and just to take action that is detrimental to itself.  Consequently, the Constitution was ratified with the understanding that any treaty that attempts to supplant the Constitution in any way is by definition null and void. The framers were clear that the Constitution could be changed only through the amendment process—not by any tenet of a foreign treaty.

The fact that treaties do not take precedence over the Constitution nor should they ever be allowed to was spelled out specifically by several states in their respective ratification documents.  These documents describe what the respective states understood to be the correct interpretation of the Constitution they were being asked to ratify and the basis upon which each state was willing to ratify.  For example, the ratification instrument of the state of Maryland stated: “…no treaty shall be effectual to repeal or abrogate the constitution or bill of rights of the states…” North Carolina’s ratification papers contain this proscription against treaties: “…nor shall any treaty be valid which is contradictory to the Constitution of the United States.”

Supporters of the United Nations and various foreign treaties to which the United States is a party would do well to dig a little deeper into the intent of the Framers and the ratification instruments of the states concerning treaties.  But then digging deeper would just invalidate their preconceived notions and belie their absurd claims about treaties taking precedence over the Constitution.

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