A follow-up question to the tribe. How are conflicts between federal legislation and treaty requirements resolved? Since both are codified as "supreme" via the supremacy clause, which trumps the other?
> -----Original Message----- > From: [email protected] [mailto:firearmsregprof- > [email protected]] On Behalf Of Henry E Schaffer > Sent: Friday, July 08, 2011 10:51 AM > To: [email protected] > Subject: Re: Treaty law and 2A mechanics > > Prof. Olson writes: > > There is a US Supreme Court case from the 1950's that says that the Bill > > of Rights trumps ALL of the original Constitution, including the treaty > > clause. I think it is Reid v. Covert. ... > > An amendment necessarily trumps the amended document (which then > becomes "the document-as-amended". Is it clear that an amendment limits > the effect of a ratified treaty? > > Article II Section 2 - "[The President] shall have Power, by and with > the Advice and Consent of the Senate, to make Treaties, provided two > thirds of the Senators present concur;" doesn't really say. > > I've heard many times that the treaty trumps the Constitution. So I > looked for more information - the first reference I read: > http://en.wikipedia.org/wiki/Reid_v._Covert is interesting. So I went on > and read a bit more: > > http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZS.html > and it's not clear to me that the decision was so broad since it is only > about a military case. > > The decision does say, "This Court has regularly and uniformly > recognized the supremacy of the Constitution over a treaty." That's > clear, but then the decision weasels, "We recognize that executive > agreements are involved here, but it cannot be contended that such an > agreement rises to greater stature than a treaty." in a footnote. > http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html > > After all this, I'm a bit confused as to whether a ratified Treaty > dominates or is subordinate to the US Constitution. I'm not helped by > Article VI, clause 2, "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;" in which Treaties are mentioned - and > the order of mention might, or might not, indicate precedence in case of > a conflict. > -- > --henry schaffer > _______________________________________________ > To post, send message to [email protected] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
