Monday, November 4, 2013


The Constitution represents an occasional inconvenience for those who fear firearms, like to indulge snooping and want the watch the federal government give the states a hard time. Though big-government advocates do many of these things already, they dream of more. Treaties are the latest gimmick to bypass the limits on federal power, and the U.S. Supreme Court will listen to arguments Tuesday about whether the practice can continue.

The justices won’t have a weighty case of nation against nation or even a state against federal power. The challenge derives from a garden-variety lovers’ quarrel that drove one Carol Bond to try to kill a rival for her husband’s affections. Mrs. Bond conditionally pleaded guilty in 2007 to a botched attempt to poison her husband’s mistress. Fortunately, nobody died, and her rival suffered only a slightly singed thumb. Rather than prosecute Mrs. Bond under the local and state statutes, the federal lawyers decided to try her under the Chemical Weapons Implementation Act of 1998, a statute to implement an international arms control agreement to prohibit chemical warfare.

The case found its way to the Supreme Court when Mrs. Bond was told she couldn’t challenge the federal statute under which she was charged. The 3rd U.S. Circuit Court of Appeals ruled that the law was a valid exercise of the president’s treaty powers.

At stake is whether Congress has the ability to expand its domestic powers through the enactment of a treaty. The Department of Justice has taken the extraordinary position that signing a treaty expands the power of the government beyond the bounds of the Constitution.

The Founders would be appalled. It has been settled law since the middle of the previous century, when the Supreme Court ruled that the treaty clause doesn’t allow Congress to do whatever it pleases. “There is nothing in this language,” Justice Hugo Black wrote, “which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.” President Obama’s Justice Department wants to dispense with this precedent.

Ted Cruz, a constitutional scholar as well as U.S. senator from Texas, thinks he has figured out what the administration is up to. “Find any nation in the world,” he says, “negotiate a treaty agreeing to do what you couldn’t do otherwise, and if the Senate ratifies it — and by the way that means you can cut the House of Representatives out of everything — then suddenly the federal government has authority it didn’t have before.” Essentially, the case could turn the whole of the founding document into a dead letter.

Among the first casualties, if the Supreme Court sides with the Justice Department, will be the Second Amendment. The White House has added the United States as a signatory of a new United Nations gun-control treaty, which could enable the signatures of other nations to replace fundamental American rights. The Supreme Court must recognize that the rights of the people are set out in the Constitution, and need no ratification or validation by other nations. This may surprise lawyers of the U.S. Justice Department, who could profit from the tutelage in an appropriate decision by the Supreme Court.

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