Bypass Constitution?

The Washington Times ^ | October 30, 2003 | Greg Pierce

[WilliamofCarmichael]

I appreciate CatoRenasci comments and thank the poster for the reminders. However, I believe our activist courts may stray too far into so-called "social justice" ideology. This concern of mine was partly addressed and well stated by CatoRenasci. To wit, "Those courts do not have our traditions of limited powers of government, unalienable rights of individuals, and such things as the presumption of innocence and a right against self-incrimination in criminal trials."

Now on to my comments in general. The internationalists who support bypassing the Constitutiona have no constitutional rights, IMO.

Those who flinch and wince at any suggestion that one might be deprived of their constitutional rights please explain how bypassing the Constitution is a constitutional right.

It's an inalienable right, sure. But others have inalienable rights to resist such doings, right? A clash of inalienable rights. Now what? I think it's called cultural war.

[Smokin' Joe]

IMPEACH!!!!! This is a stated intent to violate her oath of office.

I don't give a hoot in He11 what other countries' laws are, if I wanted to live under their laws I'd Move.

This really bodes ill for the Second Amendment.

[Sloth]

So? What does that have to do with the point? The mind-numbingly obvious fact you refuse to accept is that SCOTUS is incorporating international views into its rulings on domestic issues.

[CatoRenasci]

??? It's not hard to find modern Supreme Court caselaw: findlaw.com for free, lexis if you want to spend money.

[Smokin' Joe]

--or take notice, at least-- is lawyerspeak. The "at least" phrase leaves the door wide open to what will be "at most".

[general_re]

AFAIK, Reid II is still the controlling case on this point. The most recent approving-sounding cite a quick and dirty search turns up is a 1998 denial of cert in Breard v Greene:

Second, although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply. We have held "that an Act of Congress . . . is on a full parity with a treaty, and 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." Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion); see also Whitney v. Robertson, 124 U.S. 190, 194 (1888) (holding that if a treaty and a federal statute conflict, "the one last in date will control the other"). The Vienna Convention-which arguably confers on an individual the right to consular assistance following arresthas continuously been in effect since 1969. But in 1996, before Breard filed his habeas petition raising claims under the Vienna Convention, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which provides that a habeas petitioner alleging that he is held in violation of "treaties of the United States" will, as a general rule, not be afforded an evidentiary hearing if he "has failed to develop the factual basis of [the] claim in State court proceedings."

Link.

The question there is whether a treaty supersedes an act of Congress, not the Constitution itself, but it is difficult to see how the Court could rule that an act of Congress supersedes a treaty, but the Constitution does not. A > B > C, therefore A > C, essentially.

[aristeides]

The plurality opinion in Reid lacks precedential force.

[general_re]

As a practical matter, Reid is simply a specific restatement of the principle outlined in Geofroy v Riggs.

[exmarine]

You are right - it is a culture war. It is the secular humanist legal positivists against everyone else. They want to FORCE their idea of law and morality on the American people. Sorry - won't fly! Give me liberty or give me death!

There are SO MANY instances of illegal rulings by the courts, I don't even know where to begin. But, one of my favorites is the 1992 case Lee vs. Wiseman. In that case, the court ruled 5-4 that prayers could not be said at public school graduations. Even though the dissenting attorneys proved BEYOND DOUBT that our founding fathers not only prayed at graduations, but gave SERMONS!, the liberal elitist anti-Christian humanist SCOTUS voted it down anyway. Their ruling went against HISTORICAL PRECEDENT AND ORIGINAL INTENT. In his concurring opinion, David Souter acknowledged the fact that the founders prayed at graduations, but made the ridiculous comments that the founders "had turned their backs" on the principles of the Constitution! That would be hilarious if not so dangerous! Think about that remark- the men who WROTE, DEBATED AND RATIFIED THE 1ST AMENDMENT "TURNED THEIR BACKS ON THE CONSTITUTION!" bwahahahahahah. Impeach Souter.

[CatoRenasci]

Hmmm. Breard doesn't give me much comfort, given the last in time controls rationale (reminiscent of some of the arguments of recording statutes in First Year Property), since any treaty would be adopted post-Constitution (unless you are talking about a subsequent amendment).

The more interesting question Breard raises (and I think answers "yes") is whether we would abrogate a treaty by Constitutuional amendment.

[aristeides]

Holland v. Missouri, 252 U.S. 416 (1920) has never been overruled. It contains some scary language on this issue. It may on its terms only have been about a migratory bird treaty, but I strongly suspect it is worded as strongly as it is because Holmes and other justices were thinking about adhesion to the League of Nations through treaty.

The case for the Bricker Amendment was strong in the 1950's. The case for such an amendment remains strong today.

[general_re]

Yeah, it's not a particularly good example, merely the most recent a quick-and-dirty search turns up, as I said. Sometime when I have more free time, I'll have to go through in more depth.

[Smokin' Joe]

The federalists gave us what is now big government

Yes and no. While the Federalists certainly laid the groundwork for what has become big government, it is only after the War of Northern Agression that the Constitution has been summarily dismissed or twisted to support that Government.

Were that Government limited to the duties placed upon it in the time of the framers, it would be tremendously smaller, State Governments would be much larger (depending on the state), and the degree of legal homogenization present in our legal system would not be present.

At least as far back as the formation of West Virginia, we see that the limits of the Constitution have become progressively more ignored, usually through 'reinterpreting' some phrase to mean something not intended in order to extend Federal power. Prior to the War Between the States, the Federal government was a federal government, not a national one.

[cornelis]

Fortasse debeo poscere sententiam meam delendam esse, sed mihi persuasum est ut te dixisse ad tempum. : ) Granum salis.

[Smokin' Joe]

I like the idea, but why not extend it to all treaties? Interpretation of the Constitution has become pretty loose in recent times, why take that chance?

[general_re]

The problem with Holland was the petitioner's reliance on the Tenth Amendment. As Reid reiterates, the Tenth Amendment, in and of itself, can hardly be a barrier to the treaty-making power of the United States. A better approach, IMO, would have been to point out in which ways the treaty itself violated the Constitution by granting powers to Congress not granted to the Constitution, rather than simply asserting ill-defined Tenth Amendment issues.

[general_re]

...in which ways the treaty itself violated the Constitution by granting powers to Congress not granted to by the Constitution...

[Smokin' Joe]

...such as a treaty provision to ban the possession of private firearms which would directly conflict with the Second Amendment, or treaty provision providing for an ex post facto law or a bill of attainder against an individual).

Can you see such a decision made while paying hommage to international or other nations' laws? Such as Australia?, Britain? France? Germany? China? We would have to use them to keep them.

[Consort]

IMPEACH NOW!

It will likely be filibustered.

[inquest]

Do you know offhand of any instances where a treaty, by itself with no augmentation from Congress, actually provides for punishment of ordinary citizens for a particular offense? (besides extradition treaties, that is)