Saturday, April 25, 2009

The U.S. Constitution has one big flaw

It is agreed among most of us that the creators of the U.S. Constitution did an amazingly competent job to protect individual rights and limit the national government’s role in our lives. Of course for at least the last 50 years or so socialists parading as liberals have managed to thwart the original intent of the Constitution throughout all three branches of government but that doesn’t detract from the generally fine work of our country’s founders.

However since man is fallible and not immune to error, the Constitution contains one glaring error which enables opponents of freedom, liberty and individual rights to impose their philosophy on all of us; this mistake is in the constitutional language that makes treaties entered into by the United States the supreme law of the land; overruling all other federal and state laws and judicial decisions to the contrary.

It is harmless enough to say as it does in Article II, Section 2 that The President “shall have power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur … “; but it was undoubtedly not envisioned that the President and the Senate would be composed of people who would want to rewrite the Constitution and diminish the rights and freedoms built into the original language of the Constitution and enshrined in the Bill of Rights.

The problem and grievous mistake is what is written in Article VI which states in part:

“This Constitution and the Laws of the United States 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, any Thing in the Constitution or the Laws of any State to the Contrary notwithstanding.”

In other words, all provisions in the Constitution, including the Bill of Rights, and all state laws can be obliterated in one fell swoop by a treaty signed by the president and approved by two thirds of the senate. With a president like Obama and an essentially veto-proof senate (including the renegade Republicans who have already demonstrated disregard of the Constitution) treaties formulated by the United Nations in direct opposition to our constitutional rights can become de facto and de jure amendments to the Constitution.

There are many, many horrendous treaties proposed by the United Nations and signed onto by countries around the world but until now some of the most intrusive have not been approved by the U.S. Senate even though a president has signed them. Recent treaties of this sort that come to mind are treaties signed by President Clinton such as Kyoto, and the Law of the Sea Treaty. As the UN became more and more dominated by anti-American countries a plethora of treaties antagonistic to our Constitution have been produced. Unfortunately for unwitting Americans some of these stand a good chance of passage and becoming law in this administration.

As just one example of what is likely in store for us; during his visit to Mexico President Obama said he will urge the U.S. Senate to ratify the treaty called “Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials.” The Clinton administration signed the treaty, better known by its Spanish acronym CIFTA, after the Organization of American States adopted it in 1997. The Senate has not ratified it. This treaty contains a number of provisions that would destroy constitutional rights.

Obama will push the U.S. Senate to ratify CIFTA. Obama’s nominee for Legal Adviser to the State Department, Harold Koh, has praised the treaty (more about Koh later).

As the Heritage Foundation has pointed out, the treaty has three provisions that can reverse some constitutional rights guaranteed to all Americans.

“First, while the Treaty states that it does not apply to “firearms ownership . . . of a wholly domestic character,” this provision is obviously subject to interpretations of what is “wholly domestic.”

The history of congress and the courts expanding the interstate commerce clause of the U.S. Constitution proves that we can expect few things to be regard as “wholly domestic.” Therefore this provision is too vague and open to many expansive interpretations that would transgress the Second Amendment.

“Second, the Treaty requires that countries signing “afford one another the widest measure of mutual legal assistance,” and creates a series of indictable offenses, and the legal basis for extradition.”

Thus we would have to assist undemocratic countries since not all the states in the Western Hemisphere are democracies and countries like Cuba and Venezuela (as well as other increasingly Marxist countries in the hemisphere) can take advantage of this provision to harm Americans.

Therefore if the U.S. ratifies the treaty, it will be compelled to give legal assistance to Hugo Chavez, and to consider his extradition requests. And since the offenses created by the treaty include the “counseling” of revolution, this means that Chavez could request U.S. legal assistance against, and the extradition of, any exiled opponent who exercised his freedom of speech by calling on the Venezuelan people to resist his dictatorship.

“Third, the Treaty creates a Consultative Committee of member states and the Treaty calls for the Committee to “prom [ote] . . . exchange of knowledge and experience . . . and technical assistance between . . . relevant international organizations, as well as academic studies.”

The call for technical assistance to relevant international authorities is also a back door through which the U.S. could be maneuvered into practical participation in the UN’s. global gun control intentions [and the subject of still other treaties] without the additional advice and consent of the Senate. There is no shortage of liberal academics writing such studies and no study funded by the Consultative Committee is likely to question its basic existence. These studies, therefore, will amount to subsidized propaganda.

Much of the treaty obligates the United States in ways that that would conflict with the First and Second Amendments. The justifications offered for ratification are untrue statistically, and unwise in their approach to international politics.

Obama and others favoring the treaty refer to the widespread violence in Mexico, fuelled by the drug trade and Obama has said that the U.S. is partly responsible for this because of easy access to guns which supposedly provide the most firearms to Mexican drug lords. It has been widely reported by the administration that 90 percent of guns seized in Mexico come from the United States. If true this would be a serious; but it is not true.

According to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the figure of 90 percent relates not to all guns seized in Mexico. Rather, it is about the percentage of seized guns that Mexico sends to the U.S. for tracing that turn out actually to be from the United States. Guns that originate in the U.S. are in reality a small percentage of the total seized. Given that more than 150,000 Mexican soldiers have deserted in the past six years, taking their M-16s with them, Mexican criminals do not need U.S. sources to supply them with assault rifles. (Heritage Foundation report)

Another indication of the seriousness with which Obama intends to pursue approval of this treaty is the appointment of Yale Law School Dean Harold Koh, nominated to be the State Department’s Legal Adviser, who has been one of the leading advocates of international gun control.

Koh has strongly advocated for this treaty. In 2002, he praised it as providing “the best model” for his goal of promoting “the legal, political and social internalization of . . . [an] emerging international norm [against illicit arms transfers] into domestic legal systems.”

As has been previously pointed out, there two aspects of the treaty that would seriously damage rights under the First and Second amendments. First, the requirement to criminalize “counseling” is an attack on free speech. If this provision were put into effect, it would become a crime to resist tyrannical governments. Of course any conflict between the treaty and the constitution would have to be interpreted by the U.S. courts but how can we be sure what such an interpretation will produce. [Some courts in the U.S. have been notorious for ignoring the Constitution and some members of the U.S. Supreme Court have actually countenanced use of foreign court decisions when deciding U.S. cases.] The treaty would provide international legal support and justification “for denying the right of speaking of armed rebellion against oppression.”

Moreover the requirement to afford “mutual legal assistance” could easily be put to bad use; for example, would we want to assist Venezuela headed by President Obama’s new best friend Hugo Chavez, who is an OAS member and a treaty signatory?

Under the treaty, if a Venezuelan exile in the U.S. counseled the Venezuelan people to resist Chavez, he could be charged with a crime in Venezuela. The U.S. would then be obliged to afford the Venezuelan authorities assistance in gathering evidence, investigating, and prosecuting this ‘crime.’ Venezuela would also have the right to request the extradition of the ‘suspect.’ The U.S. could refuse this request on political grounds, but this could be deemed a violation of both this treaty and the existing extradition treaty between the U.S. and Venezuela.

The treaty creates obligations that are dangerous to free speech, offers opportunities for evading the Constitutional requirement for the advice and consent of the Senate, and could readily be expanded in ways that would conflict with the Second Amendment.

In short, the treaty is a poorly drafted document that, along with much that is ambiguous, contains provisions that (1) conflict with the Constitution, (2) would make the U.S. party to the denial of free speech abroad, and (3) would require the U.S. to either break its own pledges or give aid and comfort to foreign dictators by assisting their investigation of dissidents in the United States.

If the United states after entering into the treaty found the obligations too onerous and conflicting with important rights under the Constitution, the U.S. would have to refuse to uphold a treaty it had signed in good faith. This might become necessary but it is not sound practice. And it certainly conflicts with Koh’s belief that “responsible lawyers, scholars, and human rights activists” should use the U.S. court system to force the U.S. to comply with all international law, whether the U.S. has signed and ratified it or not. Under Koh’s vision, a U.S. court would be obligated to enforce the treaty, even if it was being used as an instrument of oppression by a foreign power.

We can only hope that when Koh, and the treaty, appear before the Senate at least the Republican members of the U.S. Senate will be less willing than Koh to substitute advocacy of international law over the Constitution.

1 comment:

C Hill said...

If such a treaty were approved by the Senate, the flaw would be with a Senate that had so little respect for the Constitution and not a flaw in the Constitution itself. I'm contacting my Senators to make a point that a treaty usurping our Constitution should never be approved by the Senate.