Even if the UN Convention on the Rights of the Child is Ratified, the Constitution and Subsequent Acts of Congress Reign Supreme
by Sal Gaglio, Jr.
In an era of expanding globalization and international governance, many Americans have espoused serious concerns about various treaties which could be ratified in the near future. A prime example is the United Nations Convention on the Rights of the Child (UNCRC).
Those sounding the alarm on the UNCRC have explained, in great detail, the various ways in which this treaty facilitates governmental intrusion in family life and seriously threatens the child-parent relationship, parental authority, and American sovereignty.
But, in an effort to raise public awareness of the dangers the UNCRC poses, opponents may be unwittingly surrendering a major point regarding treaties by believing that “a ratified treaty becomes by constitutional stipulation the ‘supreme law of the land,’ equal to the Constitution itself.” See e.g., Family Takeover: A United Nations Treaty Will Undermine Both the Family & the U.S. Constitution by Stephen Baskerville.
It is not the notion that a ratified treaty becomes the “supreme law of the land” (for purposes of federal law preeminence over State law) that is troublesome. Rather, it is the conclusion that Article VI of the Constitution confers upon treaties an “equal” status vis-à-vis the Constitution.
First and foremost, it is well-settled that with respect to ratified treaties the Constitution reigns supreme. See e.g., Reid v. Covert, 354 U.S. 1, 16 (1957) (“There is nothing in the [Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.”); See also Boos v. Barry, 485 U.S. 312, 324 (1988) (describing this rule in Covert as being “well established”).
A textual examination of the Constitution and review of constitutional jurisprudence reveals that an interpretation of the Supremacy Clause as establishing parity between the Constitution and a treaty does not comport with the overall Constitutional framework and overstates the scope of federal supremacy in the treaty context.
TREATY PARITY WITH THE CONSTITUTION VIOLATES THE CONSTITUTIONAL FRAMEWORK
One way to illustrate how conferring equal status with the Constitution upon a treaty runs afoul of the Constitutional framework is to compare the Constitution’s treaty ratification and amendment procedures.
Under Article II, Section 2 of the Constitution, the President has the power to make treaties “with the Advice and Consent of the Senate … provided two-thirds of the Senators present concur.” Notably, this process not only excludes participation by the House of Representatives, but only calls for two-thirds of Senators “present” to assent.
Contrast the treaty-making process with the deliberately more elaborate (and difficult) mechanism for amending the Constitution under Article V. This Article sets forth two methods by which amendments may be proposed; either of which requires participation (and assent) by BOTH chambers of Congress or multiple State legislatures. The first method involves the adoption of a proposed amendment (by a two-thirds majority) in both the House of Representatives and the Senate. The second prescribed method is the calling of a Constitutional Convention by two-thirds of the State legislatures for the purpose of proposing amendments. Under either method, the amendments must be ratified by three-fourths of the State legislatures or conventions (as applicable) in order to take effect.
Universal rules of construction dictate that a constitution should not be construed to render any part of it meaningless, surplusage, superfluous or nugatory. For this reason, Justice Hugo Black’s plurality decision in Covert declares that “it would be manifestly contrary … to our entire constitutional history and tradition to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of [the Constitution] in a manner not sanctioned by Article V. The prohibitions of the Constitution … cannot be nullified … by the Executive and the Senate combined.”
COEQUAL STATUS OF TREATIES AND FEDERAL STATUTES AND THE LAST-IN-TIME RULE
Established federal jurisprudence holds that, under the Supremacy Clause, both statutes and treaties “are declared … to be the supreme law of the land, and no superior efficacy is given to either over the other.” See e.g., Whitney v. Robertson, 124 U.S. 190, 194 (1888); See also Covert at 17 (“This Court has repeatedly taken the position that an Act of Congress … is on full parity with a treaty ….”).
An important doctrine springing from the parity between treaties and federal statutes is the “last-in-time” rule. Generally, this rule holds that since treaties and federal statutes are coequal, the last in time prevails in the event of a conflict between them. Although there appears to be a dispute among scholars regarding this rule, there is ample support in the case law for reliance upon it. For example, the Whitney Court noted that as between treaties and federal statutes, “if the two are inconsistent, the one last in date will control the other ….” Likewise, Justice Black’s plurality opinion in Covert instructs that “when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null ….”
It is also worth noting that while Justice Black’s decision in Covert represents only a plurality, the principles it enunciates regarding the status of treaties under the Supremacy Clause have been widely recognized as authoritative. See e.g., Peter J. Spiro, Treaties, International Law, and Constitutional Rights, 55 Stan. L. Rev. 1999, 2014 n.63 (2003).
Opponents of the UNCRC who recognize these principles are better suited for efforts which are proactive (i.e., thwarting ratification in the first instance) and reactive (i.e., seeking legislation nullifying it after ratification). Conversely, adherence to the view that ratified treaties have parity with the Constitution lends credence to an untrue premise and can stifle action when viable options in opposition exist. Although beyond the scope of this analysis, UNCRC opponents must also take into consideration the impact of both traditional international law principles as well as the concept of “customary” international law.
Loading ...
I know. It’s just horrible and terrifying that an international organization wants to tell the world not to abuse its children.
@Emma
You think that an international organization that has Cuba, China, and Saudi Arabia on its HUMAN RIGHTS (!!!!!) council is the group we should intrust with the protection of children? Furthermore, the UN is riddled with scandal and fraud, yet you trust them with protecting children?
That is awesome Deb, you just proved how worthless the post from Emma was.
Funny you should mention China and Saudi Arabia, as they are two of the very small handful of countries who kill their citizens as we do our own. In fact, perhaps having the United States as a member of this international organization is enough to make much of the known world quiver at the irony of giving us a say in international human rights. How can they trust US to have valid opinions on human rights when we are in line with the likes of China and Saudi Arabia, after all?
No, a lot of countries have legalized abortions in which countries kill their own. Oh, wait, this wasn’t what you meant.
Oh, you mean we are on pare with China by harvesting the organs of our prisons inmates without concern. Or we force women to have abortions against their will. And, like Saudi Arabia, we discourage the education of women, see them as chattel, and see conversion to Christianity as a crime punishable by death.
We only rejoined the Human Rights Council since Obama became president. He apparently agrees with your stance.
Must be nice to criticize your nation which gives you the FREEDOM to do so, unlike Cuba, China, or Saudi Arabia.
Interesting article, thanks for posting it. It shows that we can enter into treaties without having to consider them so binding that they take precedence over other laws. NAtions can be in non-compliance with parts of a treaty, without it nullifying the whole treaty or other parts of it. Thus, the argument that we should not enter into one because it might mean we cannot govern ourselves the way we want is bogus, though of course if we knew in advance that we weren’t going to adhere to a certain part of a treaty, then we should be upfront about that upon entering into it.