Posted on 03/12/2010 9:55:31 AM PST by MichCapCon
That is a really interesting issue. The Migratory Bird Treaty was the first treaty used in combination with the Interstate Commerce clause to give the federal government the power to regulate private natural resource use. This expanded into the federal Endangered Species Act.
There is an excellent Australian synopsis about the issues of treaty making and federalism: http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/pre1996/treaty/report/ (Chapters 3 and 10) It explains how the International Community dislikes the problems that our federal form poses in approving and implementing treaties. The Vienna Convention on the Law of Treaties assumes that there is a sovereign at the top that has the capacity to enter into a treaty. In our system, the People are sovereign and power is fractionalized among layers and branches of government. With treaties that reach into domestic matters, that poses a real problem.
It also explains that International Law can apply to a country that has not even signed a treaty. You can see where this would be a problem when Supreme Court Judges believe that International Law should be taken into consideration.
Some older treaties include a federal clause, but other governments don’t like this as they are bound and we are not. Sometimes we use a reservation. An example is the following federal clause from article 34 of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage:
“The following provisions shall apply to those State Parties to this Convention which have a federal or non-unitary constitutional system:
“(a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States;”
“(b) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of individual constituent States, countries, provinces or cantons that are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States, countries, provinces, or cantons of the said provisions, with its recommendation for their adoption.”
Generally, treaties made pursuant to the Constitution are the supreme law of the land on an equal footing with federal legislation. However, both implementing legislation and treaty provisons may be superceded by subsequent modifying or annulling federal legislation. The duty of the Courts “is to construe and give effect to the latest expression of the sovereign will.”
Supposedly, treaties should not give the federal government authority that has not been delegated to it in the Constitution. In implementing a treaty, Congress cannot abrogate the structural separation of authority under constitutional principles of dual sovereignty and assume either reserved State powers or powers reserved to the people. Under the principles of dual sovereignty, Congress may not impose legislation upon the States, although it may recommend implementing legislation to the States. Federal legislation must act directly upon individuals. The Courts will nullify State legislation that is contrary to “self-executing” treaty provisions or construe such legislation in harmony with a treaty.
In my (non-exhaustive) research, I came upon the following relevant cases that examined the treaty powers:
Justice Field’s opinion in De Geofroy v. Riggs, 133 U.S. 258 (1890):
“...That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation, and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries, the residence of citizens of one country within the territory of the other naturally follows; and the removal of their disability from alienage to hold, transfer, and inherit property, in such cases, tends to promote amicable relations. Such removal has been, within the present century, the frequent subject of treaty arrangement. The treaty power, as expressed in the constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Railroad Co. v. Lowe, 114 U.S. 525, 541, 5 S. Sup. Ct. Rep. 995. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 J.S. 483; 8 Ops. Atty. Gen. 417; People v. Gerke, 5 Cal. 381.
Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (This is a good case to read):
“It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted.”
In 1956, the U.S. Supreme Court in Reid v. Covert observed that the Court has “regularly and uniformly recognized the supremacy of the Constitution [U.S.] over a treaty.”
As I recall, Larry Beecraft did some good research on treaties and municipal powers: http://home.hiwaay.net/~becraft/TREATIES.html
I agree...it’s a huge message and then some...finally the states are standing..now if they will all come together... and take their stand in Washington! Governors Arise!
I cashed mine six months ago and went to a Credit Union...Exceptional service! after years of dealing with banks..the whole experience was refreshing beyond measure. They were surpurb! Highly recommend a Credit Union..and your funds are still insured.
It explains how the International Community dislikes the problems that our federal form poses in approving and implementing treaties.
Which helps to explain(as if it were needed) our leaders' propensity to consolidate power in DC to better comform to the majority of the world's governing styles. We The Sovereign People of America are standing in the way.
Let them spew their nonsense as the await the National Razor... Intellectuals? Bah...
They use the Constitution to support their fascist crap then they tell us it is a living document and not applicable to anything they stand against. Either we have a constitution or we don't if we don't, let's go hunting!
Or, we could position our vehicles strategically to shut down the interstate system in national protest of being overthrown by communists. Just stop the car, put on the parking break. Lock the doors and go have yourself a beer or two while tuning into CNN!
CaliforniaCon, you are lucky that you are able to cash out w/out penalty. Even if they don’t dip (which they will, because its the only reserve of liquidity that could get near bailing out SS), you will payer lower tax rates this year than you will before they begin jacking up taxes to pay for this mad spending. I am not a financial advisor, but i do have common sense and foresight. I have quite a few years to go, but there is no doubt that they will be jacking up taxes, which your 401k/IRA will be subject to, even if they don’t steal your IRA.
That’s how I read it too... but I’m no expert.
I don’t know about it making it harder for SCOTUS to oppose Obama. He pretty much has already alienated them by embarrassing them publicly. They know the law is on their side when they call it right. The people’s rage shouldn’t be a factor in their decisions, but they can’t be oblivious to it.
Exactly my take on it as well. There are MANY tools to use before secession needs to be considered.
1. Increase your exemptions on your W-2 to the maximum legal amount and starve the beast.
2. Short your estimated tax payments but save enough to pay your “legally” due taxes.
3. Boycott financial supporters of politicians who vote for this.
4. Kick the bums out.
5. Cash out your 401k’s now.
6. State AGs can file for injunctions in federal courts and continue to file non-stop bringing the federal court system to a halt.
There are many ways to fight this if it passes.
Repeating for exposure.
““It really comes down to this: My conservative political philosophy does not threaten or affect the freedom of liberals. I don’t ask them to sacrifice anything for me, but they DEMAND I sacrifice for them””
Exactly! I have been thinking along similar lines all day! Our philosophy leaves them pretty much free to live as they like, theirs steals our freedoms and forces us to be enslaved by their wicked philosophy
Thanks. Another thing that can be done is to lobby your state legislatures and attorney generals to declare this unconstitutional.
BTTT
What states could do is pass laws that will revoke the business license of any corporation that complies with the federal heath care ripoff. Businesses will always follow the path of least resistance. If states start shutting down corporations the will not comply with the feds.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.