The Day does not know what the Supreme Law of the Land is

I want to take the time to settle an old score. I responded to this letter by Donald M. Twitty of Westerly June 4th 2009. It is his opinion that waterboarding terrorists to get needed intelligence is "torture". I profoundly disagree but that is not the point I want to make here. Twitty wrote that “The United States signed the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. These laws provide no exception for torture under any circumstances”.

Twitty then writes (and this is the point I responded to) "The Eighth Amendment states that treaties signed by the U.S. are the "supreme law of the land."

I wrote a letter of my own printed on June 6^th that [ Twitty’s] letter " incorrectly writes that the Eighth Amendment states that treaties signed by the United States are the supreme law of the land. In fact, the supreme law of the land is the Constitution, not treaties and not "international law" (whatever that is)… the Eighth Amendment says Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. There is nothing about treaties in there”.

The editor added a note under my letter saying "The Constitution addresses "treaties as supreme law of the land" in Article VI, Paragraph II". I was aghast by this. A lousy treaty trumps the Constitution? I was afraid that was tue but how could it be? Evidently there is considerable debate in the legal community over what is the supreme law of the land. Some liberals say it is treaties and conservative say it’s the Constitution.

What Article VI Paragraph II says is this

"This Constitution, and the Laws of the United States which 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 Laws of any State to the Contrary notwithstanding.”

I had to read this several times to understand the meaning. At first reading I thought I was directly contradicted and therefore wrong. I must point out the paragraph is 64 words long. As a rule of thumb my English professor told me, a sentence over 25 words is incomprehensible. I guess the Founders did not know that…Well anyway note that the Constitution is importantly firstly name and then it says “and the laws of the United States which shall be made in Pursuance thereof”.

Now stop right there and ask what does that mean all by itself? Clearly it says the power to make laws comes from the Constitution therefore the laws made by Congress is done so with the Constitution’s authority are therefore the laws are inferior and lower rank and subordinate to the Construction; right? (That was 40 words. Did you comprehend?).

From there the run-on sentence says “and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” So what does that mean exactly? I take it to mean that like laws, treaties are subordinate to the Constitution and like laws are subject to judicial review. If a treaty is contrary to the Constitution than what prevails? The text plainly says it is the Constitution.

To put it another way, consider what George C. Detweiler writes in his online paper “Treaties and the Constitution”.

"The language of Article VI clearly states that in the event of a conflict between a treaty and a state constitution or statute, the treaty trumps the state enactments. Analysis of the relationship between the Constitution and treaties and federal statutes requires some resort to the rules of grammar and punctuation and to history.

Two separate categories of laws are declared to be the supreme law of the land. Category one is the Constitution and laws of the United States made in pursuance thereof. The history of the Republic is replete with examples of U.S. laws which are not made in pursuance of the Constitution and which the courts hold to be void. Although the Constitution is (to use an academic legal term) the "super supreme" above all other law, the Founders expanded the term "supreme law of the land" to include constitutionally sound laws enacted to carry out the specific functions assigned to the federal government. Pockets of misunderstanding have developed when the second category is considered — treaties.

The Founders were learned men, well versed in the use of language, the law, and politics. They wrote clearly and precisely. Note that it is not all treaties that are declared to be the supreme law of the land, but only those made under the authority of the United States. Popular misconceptions center around trying to apply the language "made in pursuance thereof" to treaties as well as to laws of Congress. Under this misreading, it would become laws of Congress and treaties made in pursuance of the Constitution which are the supreme law. That is not the way the Constitution was written. The reference to enactments made "in pursuance thereof" is limited to laws of Congress. A semicolon follows, which sets apart and establishes the second category, treaties, made under the authority of the United States. What is the reason and the effect of creating the two categories? Did the Founders intend that treaties were supreme over the Constitution or statutes passed by Congress? In addition to the Founders’ insights cited above, history and decisions of the U.S. Supreme Court answer both questions in the negative".

I came to the same conclusion as Detweiler did, only less eloquently, just by reading the fucking thing. It is perfectly clear to any fool that treaties do not trump the Constitution.

I came across a Supreme Court case today that inspired this blog entry entitled Reid v. Covert that held (as Wikipedia puts it) that “The Constitution supersedes all treaties ratified by the United States Senate. The military may not try the civilian wife of a soldier under military jurisdiction”.

So I win. The Editor of the Day is wrong. HA! Mine is bigger.