Last week, Secretary of State John Kerry signed a UN arms treaty that opponents say will implement a broad firearms registration scheme and eventually lead to global bureaucrats imposing gun control on the American people in spite of the Second Amendment. Despite the Obama administration’s support for the treaty, it remains to be seen whether the Senate will ratify it.
The Obama administration and other supporters of the arms treaty will likely claim that the Supremacy Clause of the U.S. Constitution places treaties above the Constitution and other U.S. laws as the supreme law of the land. Under this interpretation, they believe they can get around the Second Amendment protections on the right to keep and bear arms.
What did the founders say?
The founders very clearly stated the conditions under which the U.S. Constitution could be amended, or changed in Article V. It is quite illogical to conclude that they would write such a brilliant document only to create a giant backdoor for foreign governments to come in and destroy the liberty they worked so hard to achieve. In fact, the founders themselves said otherwise.
“The only constitutional exception to the power of making treaties is that it shall not change the Constitution…” – Alexander Hamilton
“I do not conceive that power is given to the President or the Senate to dismember the empire, or alienate any great, essential right. I do not think the whole legislative authority to have this power.” – James Madison
“I say the same as to the opinion of those who consider the grant of treaty-making power to be boundless. If it is, then we have no Constitution.” – Thomas Jefferson
Considering three of the most prominent founding fathers explicitly said that the Constitution does not permit the dismantling of itself via treaty, there must be some other meaning to the Supremacy Clause. By properly reading the clause it becomes clear that not only did the founders not leave a backdoor, they actually expressly forbade this type of maneuver in Article VI.
The answer to the riddle that confuses many people isn’t to be found in an indecipherable tome on constitutional law, but instead in simple English grammar and a little attention to detail.
This or The?
Throughout the text of the Constitution, whenever the document refers to itself the verbiage “this Constitution” is used. The only exception to this rule is the President’s Oath of Office, where the phrase “the Constitution of the United States” is used. In every other place where you find the word Constitution written in the Constitution itself, it is preceded by the word “this” making it unmistakeably clear that the Constitution is referring to itself. In the President’s Oath of Office the phrase “Constitution of the United States” makes it perfectly clear that the phrase is referring to this Constitution as well.
Yet here in the Supremacy Clause – used to justify treaty supremacy by some – the phrase “this Constitution” is not used in the final phrase. So, why is the word “this” not used here?
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.
The Founders were very clear and precise with their use of language in the Constitution, so why do we have “the Constitution” in this case (“any Thing in THE Constitution or Laws of any State to the Contrary notwithstanding”), and “this Constitution” in all other cases where the word is written? The simple answer is that in this case, they were not referring to the United States Constitution at all.
The Humble Prepositional Phrase
The humble preposition is the key to solving the intent of the Founders in this statement. A prepositional phrase – such as of, to, or in – is a word that can modify and indicate relationships. Prepositional phrases can also modify more than one object. In this case, the prepositional phrase “of any State” refers to both the words “Constitution” and “Laws” that precede the phrase.
This means that the final phrase of this clause could rightly be read to mean “any Thing in the Constitution of any State or Laws of any State to the Contrary notwithstanding.” The Founders weren’t saying that treaties were to be supreme over the U.S. Constitution, but that they could and would take precedence over the state constitutions and laws.
“In Pursuance Of…”
It is clear with a little analysis of the details of the language and grammar used to construct this clause that our Founders were placing treaty law in its rightful place – beneath the supreme law of the land in the form of our U.S. Constitution, but above the laws and constitutions of the states. There is no loophole that can allow international interests to trump the U.S. Constitution, but the treaty must be made in pursuance of our Constitution, just as all laws that Congress makes must be in pursuance of the Constitution.
While Barack Obama and John Kerry may claim that they can legislate via treaty, this clearly was not the intent of our Founders. Will this knowledge stop them from attempting to shred the Constitution and the Second Amendment by signing on to gun control treaties? Probably not. But we can rest firm in the knowledge that our Founders did not give the Federal government the power to usurp the Constitution by treaty, and that the Constitution is the supreme law of the land, not treaty law.
About Lesley Swann
Lesley Swann is a Co-Host for Tenther Radio and the state chapter coordinator for the Tennessee Tenth Amendment Center. She is a native of Anderson County, Tennessee.
Source: The Tenth Amendment Center