Posted on 09/26/2003 11:50:12 AM PDT by Vindiciae Contra TyrannoSCOTUS
And yet Holmes clearly preferred the judgment of man over the Judgment of God.
And as, by promoting punctuality, it tends to keep the body complete, there is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay.
Why would any Senator want to delay a treaty of which he approved? Hmmm?
You can see in Mr. Hamilton's language the bias toward adopting treaties as if they were necessarily matters of great urgency. The Supreme Law of the Land should NEVER be treated as such. If you can't get enough Senators into the room on time to sign their names to the document, it probably shouldn't be concluded.
I have done the research in Farrand on Article VI and the case is as I had described: there was no discussion on the language in Article VI. Further, there is discussion of the difficulties due to transportation delays from states further afield. So my conclusion was based upon what was said and agreed upon in the convention, not necessarily by those who drafted the language to spin the meaning later.
Unfortunately, I don't trust Mr. Hamilton very much, and your citation does more to convince me that he was answering objections to the language subsequent to conclusion of the convention when the Federalist was written. Hamilton was too often guilty of some rather licentious spin on language clearly left deliberately ambiguous (to be interpreted later) or upon objections raised within the convention. I remember particularly his pooh-poohing the assertion that the Constitution lent itself to becoming a government of lawyers.
We've all seen how that came out with the British Accreditation Registry BAR.
The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect.
This is the kind of total baldfaced assertion of which Hamilton was so very fond in the Federalist. What in fact has happened is that (particularly in recent years, but I have records of such going back to the Roosevelt Administration) the Senate has rammed through treaties almost in the dark of night, that, were they subjected to debate or the requirement for full attendence and recorded vote, they would have failed otherwise for having alerted the opposition (remember that package of 34 treaties adopted by voice vote a few years ago?). I know people who have video records of the Senate Chamber virtually emptying just before such a vote.
Later on, they can say they weren't there.
IMHO, the use of international agreements and laws was anticipated as a means to change the effect of the Constitution almost at will. That Hamilton felt he had need to address objecitons to this phrase publicly only deepens my suspicions.
I thought of it more in terms of Senators who didn't approve of a treaty, but didn't want to accept the political consequences of actually voting against it. As a result, they'd end up clogging the wheels.
You can see in Mr. Hamilton's language the bias toward adopting treaties as if they were necessarily matters of great urgency.
I agree that such matters shouldn't be unduly rushed, but they also shouldn't be unnecessarily delayed. The countries that we do business with, I think have a right to a reasonably punctual answer, one way or the other. If the answer is delayed because we're giving it due consideration, that's one thing. But if it's delayed simply because some Senators are playing some passive-agression game, that's not good.
Further, there is discussion of the difficulties due to transportation delays from states further afield.
But that would be all the more reason to require a 2/3 majority of the whole body, since it would be grossly unfair - by their own standards - to deliberately set up a system that would exclude the outlying states. I think they wrote these requirements with the assumption that the members would be present at the seat of government by the time the session began.
What in fact has happened is that (particularly in recent years, but I have records of such going back to the Roosevelt Administration) the Senate has rammed through treaties almost in the dark of night, that, were they subjected to debate or the requirement for full attendence and recorded vote, they would have failed otherwise for having alerted the opposition
I agree that's a problem. I think a good solution would be to repeal the 17th amendment, so as to make the Senate the independent body it once was, rather than beholden to the administration as it largely is now.
my favorite has been "The Prophet of Lewisburg."
Tipping point is a term tossed around recently. Rumsfield used it in describing how the populace of Iraq would respond much more favorably, once they realized that Saddam was finally terminated.
At some point in the past, America reach this 'tipping point', where the likes of Hiss were elected to office, rather than being sent where they could become great orators before distinguished assemblies of the incarcerated.
I read Witness, by Whittaker Chambers, during the cold war, while the Berlin Wall was intact…and it had a most profound affect.
In that case it shouldn't be ratified.
I agree that such matters shouldn't be unduly rushed, but they also shouldn't be unnecessarily delayed.
There's no such thing in the case of a treaty. If you can't get 2/3, it's not a good enough deal for the United States.
The countries that we do business with, I think have a right to a reasonably punctual answer, one way or the other. If the answer is delayed because we're giving it due consideration, that's one thing. But if it's delayed simply because some Senators are playing some passive-agression game, that's not good.
Oh come on! It's the supreme law of the land. What in that case is "unduely" (examples please)? As far as I am concerned, it's better that it takes a long time. Consider the Panama Canal Treaty and the post facto reservations in Panama after ratification. Totally unconstitutional IMHO.
I think they wrote these requirements with the assumption that the members would be present at the seat of government by the time the session began.
That is one hell of an assumption given that it took weeks to travel from outlying states.
I agree that's a problem. I think a good solution would be to repeal the 17th amendment, so as to make the Senate the independent body it once was, rather than beholden to the administration as it largely is now.
Agreed about the 17th, along with the changes I suggest, especially to Article VI. Really, we've got literally dozens of treaties in place that simply must be junked on Constitutional grounds. Consider this one adopted in 1941 (Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere ):
The Convention on Nature Protection must be read to be believed. In his summary report to a distracted Senate, Executive Report No. 5, April 3 1941, Secretary of State Cordell Hull misrepresented its virtually unlimited scope.
From the Preamble (bold emphasis added):
"The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control;"
After going on at considerable length about wilderness areas and national parks, they come back with this language in Article V Section 1:
"The Contracting Governments agree to adopt, or to propose such adoption to their respective appropriate law-making bodies, suitable laws and regulations for the protection and preservation of flora and fauna within their national boundaries but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves referred to in Article II hereof."
All species, all land, no limits to the commitment. Mr. Hull made no mention of the scope of Article V in his summary. It was he who, upon Roosevelt's approval, convened the Planning Commission that created the United Nations soon after the adoption of this treaty. It is a document that exceeds the constitutional authority of the government of the United States.
It can't work either. This treaty is contrary to natural law.
Nature is a dynamic, adaptive, and competitive system. Under changing conditions, some species go extinct, indeed, for natural selection to operate, they must. The problem arises when human influence grows so powerful that one can always attribute loss of a species to being "within man's control." When humans ask, "Which ones lose?" the treaty specifies, "None," and demands no limit to the commitment to save them all. This of course destroys the ability to act as agent to save anything, much less objectively evaluate how best to expend our resources to do the best that can be done.
The demand of this treaty... cannot be logically satisfied.
I'm referring to the text of the Constitution. It only speaks of the power to make treaties, without mention of any limits on that power.
If you have an example, I'd be interested in seeing it.
BTW, I hadn't forgotten my commitment to you to get back to you re this business of unconstitutional treaties. You were correct; I was referring to Jay's treaty and the SCOTUS has not yet repudiated a treaty. You have thus identified my book's first substantitve erratum. I have yet to write the note but it will be included in each book I ship in the future.
Thank you.
Still, considering the scope of the Convention on Nature Protection, and its impossible goal of completely stopping natural selection...
I think we have a candidate.
Interestingly enough, just as we were talking on the other thread, someone on this thread made reference to a ruling that I hadn't heard of: Reid vs Covert. It doesn't quite rule a treaty unconstitutional, in terms of the obligations it imposes on us, but it does say that a treaty can't authorize the U.S. government to do something that the Constitution itself doesn't allow. The subtle difference here is that the provision of the "treaty" (actually it was an executive agreement) in question only conferred a right upon the U.S. side, not an obligation to the other signatory (G.B.). IOW, it didn't matter to G.B. whether we exercised that power or not, because it was a concession that they made to us, not the other way around. Still, the language of the ruling seems to show some promise with regard to situations where a treaty (such as the migratory bird treaty) purports to impose an obligation upon us.
Just to follow up on the point I made earlier about the two-thirds requirement, I do know that we had a very harrowing experience prior to the adoption of the Constitution when it came ratifying treaties. Under the Articles of Confederation, a treaty had to be ratified by no less than nine states, period. But for whatever reason, only seven states were maintaining delegations in Congress when the peace treaty with G.B. was being brought up for consideration, and there was very serious concern that if it was delayed too much longer, the war might resume, and that could likely have been the end of everything for us. Eventually, of course, we were able to get two other states to send delegates so it could be ratified, but it was hairy for awhile there. So it does appear that I was wrong earlier when I speculated that the convention had assumed that most senators would be present at the seat of government at the time a treaty was being considered.
BTW, if I was a betting man, I'd bet money that Padilla will get his day in court - a civilian court.
(I like your new tagline by the way. I apply it to much of my pedestrian activities ;-)
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