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Monday, July 01, 2002
Be gentle with me. I am new, and I am trying to figure the technical stuff out as I go along (usually not a very good idea for me).

One of my favorite bloggers is Steven DenBeste, over at The Good Ship Clueless. Today, he points out that the International Criminal Court is unacceptable to the US because it is not subject to the appropriate checks and balances, as our own court system is. I agree. He goes on to state, however, that a number of treaties which we did not enter into would have violated the Constitution, citing a treaty on biological weapons, a treaty on the Internet, and so on.

A quibble: It is not possible for a ratified treaty to violate the Constitution, regardless of the terms of the treaty.

Article VI of the Constitution provides:

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.

The supreme law of the land has three sources:

The US Constitution;

The laws of the United States made pursuant to the Constitution; and

Treaties made under the authority of the United States.

A treaty, any treaty, once signed by the President and ratified by the Senate, becomes the "supreme law of the land," conflicts with the Constitution notwithstanding. That is not to say that the treaties that Steven was discussing (which clearly violated either the Constitution itself or the Bill of Rights) should have been ratified. Had they been ratified, however, by definition they would not have violated the Constitution. They would have amended it.

UPDATE: Doh! The Sage points out that the language quoted above "anything in the Constitution or laws of any State to the contrary notwithstanding" refers to the constitutions of the states. Not only is that correct, I should have known it to begin with. Treaties between the US and another nation would not amend the US Constitution. They would, however, amend existing statutes, to the extent that the effect of such an "amendment" would not violate the US Constitution. That's what I remembered from my long ago course on international taxation.
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