Comment by michael_dorfman | Hacker News Reader

Comment by michael_dorfman | Hacker News Reader

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michael_dorfman

Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour?

That ought to do the job; Article VI of the Constitution plainly states that "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."

In other words, if there is a treaty obligation, that trumps all other considerations.

How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress.

Article II, Section 2 of the Constitution spells this out: "[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 seems like a bit of circular reasoning.

How so?

Because the constitution is setting up the rules for what can completely superceed it. Basically: Congress and the President must follow these rules when governing the country, except when they agree not to, as declared in these same rules.

I get the need for treaties and and federal laws to superceed local laws, but that laws have to be made pursuant to the Constitution while treaties only have to be made under the authority of the United States, defined as the President and 2/3 of the Senate, is odd. Seems as though they could legally eliminate all constitutional obligations through treaty, or even enter into a treaty to use a different constitution.

http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_backgro...

This is not really circular at all, merely self-referential; the Constitution also provides a process for it to be amended, so any and all of it's provisions could be repealed or rewritten without having to get a foreign government involved in the equation at all.

Of course, all of the parties involved (President, Senators, etc.) have sworn an oath to uphold the Constitution.

I understand the creepy feeling, though. And I'm pretty sure that through treaty, they've dramatically lowered the bar for entering into a treaty to simple Presidential whim. According to Wikipedia, "executive agreements" outnumber actual treaties by 10:1.

http://en.wikipedia.org/wiki/Treaties#United_States_law

Thanks for putting into words what didn't "feel" right to me; my use of "circular reasoning" wasn't quite the appropriate phrase, I guess.

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