Copyright 2009, all rights reserved
Note on 1/11/10: The original version of this article (posted on 10/26/09) received considerable attention. An error in it has since been identified, for which this page contains the corrected version. In the original, I errantly wrote that the Vienna Convention on the Law of Treaties (VCLT) had been ratified in 1969. This was no mere presumption on my part. I had Googled "Vienna Convention" and "ratified" and it came up with notes indicating that a treaty called "the Vienna Convention" had been ratified that year. I had also checked the UN for the VCLT status and it said that the treaty had gone into force in 1969. Then I had Henry Lamb check the article, as he has more experience with the sequence of events leading toward global government than perhaps any other public person. He said nothing about it, because our government has abided by its terms for so long that he too believed it had been ratified. So I went no further, both because of the indications from numerous sources in the US treating the VCLT as authoritative and due to the long term since it had gone into force.
I say this, not by way of explanation as much as to show how even the slightest inattention to covering every fact in this maze of international law can nail anybody, for it turns out that the US ratified the Vienna Convention on Consular Relations (VCCR) in 1969, the same year the VCLT went into force. I apologize for the error; this is the first time I've had to write such a retraction in well over ten years of writing on political topics.
So, the VCLT is not ratified, yet agencies of the US government are abiding by its terms because the Department of State considers it "customary international law." More on that in a bit once we've laid the historic foundations as to how this could have happened at all.
To most Americans, treaties are an obscure branch of law, affecting only those who deal in "international affairs": corporations, diplomats, military people, etc. Most have heard of the UN Charter or Geneva Convention, or any number of “peace treaties” thinking that’s about the end of it. Unfortunately, this belief is totally disconnected from reality. So, my first job is to explain to you why you should pay attention to this lengthy article full of abstruse quotes from the founding fathers.
My guess is most readers don’t believe any of that. Mind you, I am not saying that any of these attributes is legitimate, but this is how things work in Federal court. What we are witnessing is the development of an elitist government, effectively a form of feudal fascism equivalent to the 18th Century mercantilism against which the founders rebelled in the first place.
In 1787, when the Federal Convention was called and the Constitution was written, celebrated champions of liberty such as Patrick Henry and Samuel Adams refused to attend. When questioned about the reason for his decision, Mr. Henry spat out his famed opinion of the Convention process:
“I smell a rat.”
You’ve got to like Patrick Henry, if only for his candor.
Little did he know how prescient was his suspicion. Whether Mr. Henry regarded his influence as insufficient to inflect the outcome (and thus his presence to be effectively complicit in a travesty (my conclusion)), or whether he believed his powers of persuasion in Virginia to be sufficient to derail the effort at a later date is immaterial. The more important lesson is that for these “anti-Federalists (a-F)” to remove themselves from the battle was a great misjudgment, reflecting the foibles of weakness of faith and most conservatives' usual distaste for the daily street-brawl of politics (out of which liberals derive apparent pleasure).
We can no longer afford such a luxury.
The Constitutional Convention itself had been conducted in secret, which should have been enough to arouse near insurrection. But things were bad back then and most people were occupied with mere survival. The United States after the Revolutionary War was broke. The Continental Congress had little power to tax. European lenders were very reluctant to part with any gold when the States were capable of printing currencies of various sorts with which to "pay" it back. Besides, there was no “United States government" to guarantee payment. Nor was there a national government to organize and fund the defense infrastructure to repel an invasion to re-conquer the fledgling nation one State at a time.
It was bad. So it wasn’t as if there was no justification for the Constitution, far from it. The problem with secrecy is that it is far too easy to slip in a few provisions that bite you later. Best that, if the nation must enter a bad deal to survive, it knows what to change later once the debt is paid.
Upon conclusion of that famous Convention which produced that revered document whose obvious strengths stand simultaneously both celebrated and ignored today, Mr. Henry and his fellow anti-Federalists made their last stand against it, their speeches collected in a remote set of records whose faint echo today should now be ringing in our ears, the speeches of Patrick Henry, at the Virginia Ratifying Convention.
HENRY (a-F): I need not take much pains to show, that the principles of this system, are extremely pernicious, impolitic, and dangerous. Here is a revolution as radical as that which separated us from Great Britain. Thursday, Patrick Henry, Virginia Ratifying Convention, June 5, 1788,
Note: Quotes from the Virginia Ratifying Convention are as the clerk recorded them, not as they were spoken. There are consequent changes in voice, grammar, and perspective that can be confusing. Such is simply how things were done at that time.
He does sound a mite hyperbolic, doesn’t he? Well, it might seem so today to a nation vastly overshadowing its national progenitor in physical power, but considering the magnitude of our national debt, and those to whom it is owed, best we reconsider the perils at our door arising from this very point of contention. For it is the treaty power which is so easily diverted, seemingly upon a whim and without regard to the wishes of its citizens, that so easily demonstrates the truth of Mr. Henry’s contentions.
The paradox at issue, both then and now, is very simple: Can a government with limited powers agree to terms whose execution require exceeding those limits?
In principle, no. In practice, it’s done all the time.
In response to this particular question, the Federalists said “No”:
Gov. RANDOLPH (F) Mr. Chairman, I conceive that neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty (please mark that limit against what he says later). The lives and properties of European subjects are not affected by treaties, which are binding on the aggregate community in its political, social capacity.
The honorable gentleman says that, if you place treaties on the same footing here as they are in England, he will consent to the power, because the king is restrained in making treaties. Will not the President and Senate be restrained? Being creatures of that Constitution, can they destroy it? Can any particular body, instituted for a particular purpose, destroy the existence of the society for whose benefit it is created?
Of course, those were merely rhetorical questions because, at that time, no one among the political class could possibly get away with claiming that an American official could ever be so treacherous as to exceed his legal authority as granted by the people (at least not without facing a pistol at twenty paces). Considering the economic chaos at the time and the possible threat of European re-conquest, most folks gave the Federalists the benefit of the doubt, if only for relief from the apparent flaws of the Articles of Confederation. It was a crisis!
After all, these Federalists were great men of good family. This was The Enlightenment, a time in which men of stature believed that human aspiration to greatness derived from morality, altruism, nobility, and the good works of men. Their evident distaste for plebian Christian principles, so long and terribly violated by leaders of the Catholic Church long before during the Middle Ages, had released them from the restraint of humility, seeking ambition in their demonstrably good works.
“Good” according to whom? Doesn’t such thinking lead one to conclude that ends justify means? After all, noblesse oblige all too often entails droit de seigneur in the "bargain," but who would be so cheeky as to protest any supposed act of altruism by a wealthy and powerful elite?
This question cuts to the very core of Henry’s fears, for there was NO penalty to be exerted upon officers of the government who ignored Constitutional limits in pursuit of those “noble” goals:
HENRY: This, sir, is my great objection to the Constitution, that there is no true responsibility — and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves.
For what? Why would any Constitutional officer so wildly exceed his legitimate powers as to conclude a permanent and binding agreement with a foreign government that would violate the rights of citizens? How would they even think that they could get away with it? To accuse anyone of the American nobility of such base desires was simply horrifying! The Federalists wasted no time demonizing Mr. Henry for even voicing the prospect.
JAMES MADISON (F): thought it astonishing that gentlemen should think that a treaty could be got up with surprise, or that foreign nations should be solicitous to get a treaty only ratified by the senators of a few states. Were the President to commit any thing so atrocious as to summon only a few states, he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.
Can't you just hear the sputtering? Well, he was dead wrong.
As is documented elsewhere on this site, treaty law has been used to enact outrageous usurpations of power without so much as a record of a quorum, committee vote, or recorded vote. In every instance they were enacted for supposedly noble purposes while they just so happened to benefit the “noble” quite considerably. One such monster, (the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere) committed every inch of the United States and its entire economy to stopping natural selection dead in its tracks. Hard to believe? Here is the language of the preamble:
The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man's control;"
How extensive is "enough"? That is explained in Article V:
...within their national boundaries but not included in the national parks, national reserves, nature monuments, or strict wilderness reserves referred to in Article II hereof.
There was to be NO limit to the commitment to save even the most insignificant variety of plant or animal, no matter how much money or land it took. Now, as to whether or not you agree with that goal, it is obvious that such power wildly exceeds Constitutional limits AND that the process of concluding and ratifying the treaty in no way consulted the will of the people. Nor was this some recent creation, this treaty was “ratified” in 1941, pursuant to a fraudulent summary by Secretary of State Cordell Hull (misrepresenting the content of Article V).
More recently, a package of 34 treaties was ratified by mere voice vote.
It was a problem from the beginning, and it is not as if nobody else besides Mr. Henry had noticed:
GRAYSON (a-F) in a hypothetical example of the possibility of the government ceding control of the Missippi to Spain… If the senators of the Southern States be gone but one hour, a treaty may be made by the rest, yielding that inestimable right. This paper [the Constitution -ed] will be called the law of nations in America; it will be the Great Charter of America; it will be paramount to every thing. After having once consented to it, we cannot recede from it. Such is my repugnance to the alienation of a right which I esteem so important to the happiness of my country, that I would object to this Constitution if it contained no other defect. Virginia Ratifying Convention, June 5, 1788
Pursuant to the Convention on Nature Protection and others like it, private property rights have been routinely trashed by green groups and complicit Federal bureaucracies using trumped up claims of the need to protect "critical habitat" for endangered species. In every case, they cite statutes that cite treaties for their authority to execute powers to effect the regulatory taking. Now, it is one thing to pay somebody what it’s worth to assure the continuation of a species as a service or to buy their land at full market value for the benefit the public as a whole, but it is quite another to pay pennies on the dollar for the property when the market value is gone because of the mere threat or legal cost of resisting a regulatory taking (sadly, it would be cheaper to pay for the service than for the legal battle). Even worse is to exert massive fines until the owner is bankrupt with the arresting officer, judge, and legislator all belonging to the same agency (the so called "administrative law judge"). But even WORSE is when the supposed environmental benefits of the taking fail to materialize or backfire completely, especially when their real purpose had NOTHING to do with benefiting productive wildlife habitat but instead was all about using the law to manipulate markets and make money.
It happens all the time. Fixing it was the subject of my first book, Natural Process: That Environmental Laws May Serve the Laws of Nature
The "administration" of virtually every major environmental law on the books routinely violates the principles of separation of powers, enumerated powers, equal protection, taking without compensation, unlawful search and seizure, protection against self incrimination, due process, and the assumption of innocence…
Such costs have driven our industry offshore, closed our mines and farms, and converted thousands of square miles of former savannah into a virtual desert (which I document photographically in several National Parks on my new CD, Shemitta: For the Land Is Mine).
Virtually every major Federal environmental law cites treaty law as its source of authority, simply because extending Federal police power within the States for the purpose of environmental protection necessitates powers exceeding those enumerated in the Constitution.
Treaties matter, and just because such treatment hasn’t yet reached you doesn’t mean that it cannot. Environmental law has become a crooked racket, wildly inflating the cost of everything you buy, and I’m not talking just a minor bit of pain. Just one case cost the people of California the equivalent of a free college education for every eligible child in the State, or a down payment on a home (see article on this site, Energy Racketeering: The Natural Resources Defense Council).
HENRY: The power of making treaties, by this Constitution, ill-guarded as it is, extended farther than it did in any country in the world. Treaties were to have more force here than in any part of Christendom; for he defied any gentleman to show any thing so extensive in any strong, energetic government in Europe. Treaties rest, says he, on the laws and usages of nations. To say that they are municipal is, to me, a doctrine totally novel. To make them paramount to the Constitution and laws of the states, is unprecedented. I would give them the same force and obligation they have in Great Britain, or any other country in Europe. Gentlemen are going on in a fatal career; but I hope they will stop before they concede this power unguarded and unaltered
GOVERNOR RANDOLPH: Can any particular body, instituted for a particular purpose, destroy the existence of the society for whose benefit it is created? It is said there is no limitation of treaties. I defy the wisdom of that gentleman to show how they ought to be limited Wednesday, June 18, 1788, First speech: Treaty power
Scary, isn’t he? So far, we've got stammering, bombast, and obfuscation.
HENRY: I say again that, if you consent to this power, you depend on the justice and equity of those in power. We may be told that we shall find ample refuge in the law of nations. When you yourselves have your necks so low that the President may dispose of your rights as he pleases, the law of nations cannot be applied to relieve you. Sure I am, if treaties are made infringing our liberties, it will be too late to say that our constitutional rights are violated.
"Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.” Saturday, June 14, 1788, First speech: Restraint on corruption
I have toyed with the idea of fixing the supremacy clause in Article VI. I don’t like the ambiguity in the existing construction one bit:
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.
So, is it “under the Authority of the United States” that “all treaties made, or which shall be made” shall be the supreme Law of the Land? Or is it effectively “treaties made under the Authority of the United States…” as limiteded by its constitutionally enumerated powers??? Most people read it to be the latter and it is equally clear that the Federalists argued as much. On the other hand, we do know which one the lawyers have apparently used. In my opinion, we need a Constitutional Amendment that declares any treaty or legislation pursuant to a treaty void if the powers required to enforce the terms exceed those enumerated in the Constitution. I have not yet settled upon the language.
Whether to limit the treaty power in Article VI is one thing, but there should be NO disagreement about Amending Article II, Section 2, Clause2 of the Constitution as follows:
He shall have
Power, by and with the Advice and Consent of the Senate, to make Treaties,
two thirds of the Senators present three quarters of the
legislatures of the Several States concur;
Why State legislatures instead of the Senate? They don’t deal in foreign policy?
Treaties operate at the Constitutional level. The same standard should apply to treaties as to amending the Constitution itself. This is particularly true since the 17th Amendment (which should be rescinded) changed the appointment of Senators by State legislatures to popular election. So this change at least goes a short way toward restoring some of the benefits of federalism without the bulk of its historic complications.
It is a very simple amendment that should brook no argument. Fire any Senator or reject any candidate who resists. It is that important.
As to whether mere State legislators would understand a prospective treaty, the proponents would have to explain them in sufficient detail to make a compelling case, wouldn’t they? It would take a while to do that in three-quarters of the legislatures, during which time any hidden agenda would easily come to light. One wonders if that is why the Federalists initiated in the expedited treaty ratification process (for more on the way Hamilton et al. foisted this process read the article, Treaty Law: The Constitution’s original Trojan Horse on this site). In defense of that process, and in opposition to involving the House of Representatives in treaty ratification, Hamilton wrote this in Federalist 75… (anonymously):
Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy [emphasis in the original!!! -ED], and despatch [sic], are incompatible with the genius of a body so variable and so numerous.[snip]
The very complication of the business… [snip] …would be a source of so great inconvenience and expense as alone ought to condemn the project.
OK, to demonization, stammering, and bombast, we've added the famed "snow job" (and if you have not read Federalist 75, that is exactly what it is).
One would think amending the Supreme Law of the Land SHOULD be “inconvenient” and definitely SHOULD NOT be conducted in “secrecy.” Article VI should have been amended long before the Civil War. Speaking of which, why is this important? Who benefits from this?
After the Civil War and just like the first one, the Republic was broke. The Civil Rights Act of 1866 had already given full citizenship to freed slaves. Yet somehow, Congress felt it necessary to institute the citizenship and equal protection clauses in the 14th Amendment. Why?
The answer is in the citizenship clause itself, or should I say, NOT in the citizenship clause:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Two lawyers then in Congress, Roscoe Conkling and John A. Bingham, had taken the trouble to omit the word “natural” from the usual legal term “natural persons” as is found in the Civil Rights Act of 1866. Why? At the time, the principal financial interest represented in the post-war Republican Congress were the railroads. Both of them later admitted that their purpose in the omission was to confer the rights of citizenship to FICTITIOUS persons, in other words, corporations (for more on that story, see the article on this web site: Kelo & the 14th Amendment:Exploring a Constitutional Koan).
This change plus the “privileges and immunities clause” unified laws between States regulating corporations to a far greater degree. It also made the Congress a one-stop shop for selling favors as opposed to accommodating all those local preferences in State legislatures. Needless to say, this was a VERY attractive feature to European capital. It is upon this change, that the great industrial robber baronies were built, where instead they might have been more numerous (and competitive) smaller entities. These folks amassed so much wealth, that the rest of the country, many of whom were recent immigrants ignorant of Constitutional principle, fell prey to envy and instituted the income tax. The rich immediately exempted themselves by putting their capital gains into tax-exempt foundations under the guise of “charity.” Some of it was. A lot of it isn't.
It is these very tax-exempt foundations who supply the bulk of the seed money to environmental groups that sue complicit federal agencies. It is these same “non-governmental organizations” (NGOs) consisting principally of lawyers who sit in on the various United Nations conferences today, drafting treaty law in secret and changing their effective meaning after ratification as members of various UN secretariats. Again, there is an excellent series of examples on how the system rigs the system subsequent to these treaties in Energy Racketeering: The Natural Resources Defense Council
Using a tax-exempt foundation under the guise of “charity,” to twist the laws forcing people to use your product, induce artificial scarcity to raise prices, to use regulatory power to force competitors out of the market, or to protect you from liability for your product, all in order to reap a guaranteed profit is tax fraud, racketeering, malicious mischief, and theft on a grand scale.
To fund a process that systematically dismantles constitutional protections for the unalienable rights of the people and to construct in its place an extra-national government to exercise powers exceeding those proscribed by the Constitution and capable of violating those rights for whatever reason, whether profit or pretended altruism, is worse than mere crime, it is treason. It is a process that absolutely depends upon the very expensive perpetration and maintenance of a fraud upon the people in the name of protecting the environment.
I say this as one committed to the arduous process of native plant habitat restoration at an unprecedented level for nearly twenty years. I gave up a successful engineering career to mitigate the environmental damage largely perpetrated by wealthy socialists. I don't just complain, I develop, test, and implement viable alternatives by which to manage wildland assets. I say it again, the wealthy socialists who fund this gambit of foisting treaties to empower regulations to kill their competition, induce artificial scarcity, avoid taxes, and fatten their profits are crooks. They belong in jail.
So, to recap,
So, now we come to that last item. Nobody says anything about it. Really, "binding upon signature"? What happened to ratification? Isn't that a change to the Constitution? How did they get away with that?
They did it with a treaty, a treaty about treaties, and a treaty that was never ratified. It was the Vienna Convention on the Law of Treaties (pdf file), and boy is it ever a winner. Administrative agencies of the US government are abiding by this monster without Constitutional authorization, effectively enforcing new treaties upon signature pursuant to a treaty that (I repeat) has not been ratified.
Means of expressing consent to be bound by a treaty
The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.
Consent to be bound by a treaty expressed by signature
1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or
Just who would make that determination and how, it just doesn’t say. And if that wasn’t enough:
(c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.
You mean, the negotiators could get drunk, be paid off, have a bad day, or suffer a lapse in speech and whatever they agreed to would be the Supreme Law of the Land? Effectively, even if the document does not state that it is binding upon signature, one can always produce witnesses from the UN to will claim that the negotiators had "consented" to it.
2.For the purposes of paragraph 1:
(a) the initialling of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed;
(b) the signature ad referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty.
Remember: at the time this beast went through the drafting process, both houses of Congress and the President (LBJ) were controlled by Democrats. Whatever the barrier to ratification was, they ignored it, and just started doing it anyway. Nixon (a GOP "moderate") went along with it.
How does it feel to know such weasel words have been the treated as the Supreme Law of the Land without ever having been ratified for forty years and yet not one President, Republican or Democrat (not even Reagan), ever breathed a word about this beast? How then could it be truly "binding"??? This must be some sort of hyperbole on my part, right?
By “binding” the UN means that the signatory government agrees not to do anything in conflict with the goals or the spirit of the treaty pending ratification. So there does remain a distinction between signature and ratification as regards enforcement. In effect, it has to do with who does the policing. So although there is no formal enforcement process, such is in the works via mechanisms such as the World Trade Organization and the Bank for International Settlements.
Now you know why George Bush’s administration was instituting programs to cut greenhouse gas emissions despite the fact that the Senate had rejected the Kyoto Protocols 98-0: Clinton had signed it. Now you know why we see subspecies (simple variants on a species similar to differences in hair color in people) listed as “endangered” despite the fact that the Senate rejected the Global Biodiversity Treaty: Clinton had signed it. I don’t want to tell you what you’ll see from schools and Child “Protective” Services should the Rights of the Child Treaty be fully incorporated, but its most elegant feature is that children have the right to grow up in a “gun free community” which of course means that only criminals and police will have them.
Charming, isn’t it?
This sort of behavior upon the part of US government agencies and Federal courts is damning indication of the lawless internationalism toward which we are headed, establishing a body "law" of pursuant to “customary international law” that is effectively fictional. The effects are not confined to the remote or arcane.
For example, recall the furor over George W. Bush "unsigning" the Rome Treaty for the International Criminal Court that President Clinton had signed. Why would President Bush bother sending Ambassador Bolton to the UN to deliver a letter of rescission if Clinton’s signature exerted no force upon US law? The answer is simple: At the time, we were fighting alongside signatories of that treaty who were bound to comply with warrants and orders of that court among signatories of that instrument. Should an arrest order against a US citizen have been issued, the soldiers receiving that order might have been in a pickle.
On the other hand, President Bush specifically chose NOT to “unsign” the Kyoto Accords, even though they had already been rejected almost unanimously by the Senate. Why? Secretary of State Condoleezza Rice had recommended against it because it would show US foreign policy as vacillating and inconsistent with President Clinton having expressed a commitment of great importance to our European allies. Of course, WHY it was of great importance is because they had already hamstrung their economies into reducing greenhouse gases; they did not. want to compete with an America free to compete without similar restrictions.
Yet another reason for the difference between Kyoto and the Rome Treaty is that the ICC goes into force globally if 60% of the nations of the earth assent,. That's right, the UN will attempt to enforce a court with global reach even if we do not sign much less ratify it. To allow such a precedent to stand unchallenged would be insane; thus President Bush judged this action to be worth the resulting diplomatic cacophony.
The Convention on Biological Diversity, the consideration of which was halted by the Senate in 1994 (and is still pending to this day) is the source of protections for "subspecies" under the Endangered Species Act. Such protections are why coho salmon could be endanged from Seattle WA, to Santa Cruz, CA. They just protect each subgroup as if it too was in trouble when we know that the species as a whole is so genetically plastic that it will show such differences in but three generations.
Treaty signatures clearly matter in international relations, but more importantly, consistency matters to those to who have made investments upon the assumption that the US abides by the commitments of its chief executive, else his word in negotiations doesn’t mean very much. The proponents might argue, "Why negotiate with a nation that cannot do what its negotiators promise it will do?"
So, there may be another article in the works on how the system works between foundations, NGOs, secretariats, agencies, universities, lawyers, the UN, etc. but right now I'm so tapped out that I'm going pretty slowly, as the tardiness of this response testifies.
Finally, in response to the tenor of those who flippantly regard the threat of a treaty signature as without legal force, I want to cover what I regard as a serious weakness in what I'm dubbing “the constitutionalist premise”. Few Americans have actually read The Federalist and Anti-Federalist papers, much less Farrand’s Records. I have, as well as the writings of the philosophers favored by the founders and scholarly treatments of The Enlightenment in general. I say this not so much as to impress, but so that you will understand that I am truly sympathetic to the principles typical of “constructionist” legal doctrine. However, too many conservatives fervently believe that what the Constitution meant when it was adopted must have been their ‘plain meaning’ reading of it today. Thereby, they believe they have access to some sort of Deus ex machina “ace-in-the-hole” as regards legal arguments on "Constitutionality." Time and time again, they go disappointed in Supreme Court rulings, thinking them as something eventually to be overturned (think Kelo v. New London) once a constructionist court majority is confirmed.
I argue that they are likely to be disappointed, not only because of political reality, but because their understanding of ‘plain meaning’ or original intent may in fact be mistaken. Hence is my emphasis upon the arguments between Henry and the Federalists; that there must have been more to what was going on at the time than is commonly understood. Frankly, I think such wishful thinking is a sort of vanity, where that “original meaning” is elevated to what they believe it meant or wish it to have meant, when in fact that text might instead have been a deliberately-hidden poison pill (hence my comment re commas in the supremacy clause in Treaty Law: The Constitution's Original Trojan Horse, posted on this site). If I am correct, then “original meaning” takes an entirely new aura in that it represents what the politicians at the time intended, whether representative of a hidden agenda or not, which is in part why I focus so emphatically upon the comments from Hamilton in both articles.
The terrifying reality is that Hamilton’s preferences may indeed represent the originalist position; i.e., that he believed treaties SHOULD be concluded in secret and rammed through with “despatch” by “two thirds of Senators present” then to become the “Supreme Law of the Land.” After all, the Federalists won that debate and the Constitution did go through as written, despite Henry’s objections to the troubling language in Article II as cited in both articles. That unpleasant thesis of mal-intent in the original language is reinforced by the Kelo article on this site, as language very similar to the “equal protection” clause of the 14th Amendment was proposed by Madison in the original Bill of Rights and was rejected. (Those unfamiliar with the consequences of that language should consult the article before dismissing the point.) In short, there was an element among the founders that may well have secretly intended Federal usurpations of power against the liberties of the people by federalizing legislative and regulatory powers then to be subordinated to the very internationalist agenda we see today. To see “originalism” otherwise may well be a case of willfully selective blindness as to the founders’ original REAL legal intent hidden in plain sight in The Federalist 75.
Despite such apologetic blindness, by virtue of that very veneration for original "plain meaning," the people at large do possess a particularly interesting legal argument versus that hidden ‘original legal meaning.’
The Constitution states explicitly that it originates from "We the people," not 'We the representatives of the people' exclusive of the people as a whole. If the meaning of the documenet, as understood by the people as a whole at the time of ratification, resembles that ‘plain meaning’ interpretation (and especially if that is what its advocates represented), then interpretation of the document rightly should reflect their understanding as what is truly “original.” In short, it should be interpreted now as the people understood it at the time it was ratified, which more likely reflects plain meaning as blustered by Madison and Randolph in response to Henry, or so one might rationally hope.
Given the language of how the Constitution was to take force, I am not so sanguine, which is why it is entirely obvious to me why this country’s government is engaged in abiding by and enforcing regulations pursuant to a completely illegitimate body of precedent as “customary international law.” Such a legal and administrative habit may, in fact, carry more legal, political, and historic legitimacy than any of us would prefer to grant. We get the government we deserve, and are responsible to account for its malfeasance.
As to the Copenhagen Treaty, I must apologize, I have scanned it, but have not studied it yet in detail, for which there is very good reason. The problem with reading this beast is that what Lord Monckton is warning us about is not the final treaty.
The final article will likely be much worse.
This COP-15 document consists of a vast array of bracketed options to be decided upon by “the parties” and few have any idea what an appropriate term “parties” really is: When the thousands of delegates, mostly from “developing” and third whirled countries, show up in Copenhagen, they will be ensconced in fancy hotels, and showered with days of wining and dining, with a per-diem sufficient to supply the likely influx of hookers. These minor officials will gather in large rooms with UN staff scurrying back and forth telling them how to coordinate with what has been decided in another room pursuant to closed door meetings with no-one but the UN-paid staff present. Hence, NOBODY KNOWS what the final article is going to be other than the staff, but no matter what, the final product will be declared “a consensus
Yup, it’s secret and is it ever fast! Fans of Alexander Hamilton should be thrilled.
Barack Obama has every intention of signing such a monster. Of course, neither he nor we will have any idea what our negotiators will have SAID during negotiations…
One important feature will be a global planning authority under the aegis of an obscure international network of bureaucrats. This is the regulatory pipeline of UN Global Governance pursuant to the Global Agenda 21, an oppressively comprehensive regulatory plan for the entire planet that just somehow takes care of the stockholders whose pet NGOs institute their preferred policies. The process works something like this:
If the policy goal exceeds Constitutional authority, the foundations’ pet NGOs design specific provisions to be incorporated into a treaty (such as “cap and trade” fees penalizing production of carbon dioxide). Many of these folks also work (upon occasion) at Federal agencies or at the UN equivalent of the Environmental Protection Agency, the (International Union for the Conservation of Nature and Natural Resources). Some are appointed onto the US delegation to negotiate the specific treaty provisions. Upon signature, they either come back to the US bureaucracy, sit on the appropriate UN “conference of the parties” (the committee that writes the treaty and (after completion) forms a permanent panel that interprets it over time), or they go back to the NGO to sue their former employer “forcing” the government to institute rules or legislation by which to comply with the treaty. It’s a hall of mirrors with revolving doors going at full tilt, people scurrying back and forth...
Congress or the agencies then offer the lure of Federal funds to induce cash-strapped local governments to comply. If they don’t, the same heavily financed NGOs can threaten suit. Few local governments have that kind of money to spend so they cave. Then the local planners, many networked with ICLEI (the International Council of Local Environmental Initiatives) or ICLEI-USA enthusiastically crank out the specifications for how your community will be run such that you will reduce your “carbon footprint.” Believe me, they have read all the industry magazines full of “good ideas” as to exactly how you should do that (nearly all involving large amounts of energy upon which you will be taxed). Essentially, the system does everything possible to force you into “Sustainable Development,” an overpriced urban apartment complex sitting on land heisted from its owners by a redevelopment agency using eminent domain and handed to a developer at below market value. You can be easily controlled in such a “community” with little chance of escape.
The energy taxes will be hidden in everything you buy, so you will not see how much they really are. Every new product will face bureaucratic hoops to ascertain its “impact.” You will need to “offset” that impact with a Nationally Appropriate Mitigation Action (NAMA, see the text of the proposed treaty for a description), which effectively means you’ll need to find an agent selling carbon dispensations. Whether or not they actually benefit anything is immaterial and I have seen some amazingly contorted logic justifying these “mitigations.” More than likely, all you will truly need to have your project viewed favorably is to grease the appropriate palm.
These treaties are worded in such a way that it is easy to change effectively what they mean as the situation demands. They contain provisions setting up administrative bodies within the UN that determine the particulars of how they are to be enforced. NONE OF THESE PEOPLE IS ELECTED. They are often selected from the same NGOs that drafted the original document. Effectively, activism is thus rewarded with a lifetime career of writing Byzantine rules and regulations that please their original sponsors.
The process automatically forces production into the hands of those possessing means to manage the paperwork. Change the product and you’ll just have to reapply. Don’t worry about the backlog among all these paper-pushers; it will be the same for everybody, uh, won’t it? Although it would be really easy to tie up that hot new product with “questions” making it impossible to get into production, I just can’t imagine how anyone might influence a nameless bureaucrat in a foreign country working for a totally unaccountable agency with unlimited powers, do you?
So, the Copenhagen Treaty (along with many others) will effectively place the United States of America under a vast and inherently corrupt foreign government no matter what the final document says. The NGOs can change the meaning of it as they go anyway.
Still, if you are determined to read it, the current Copenhagen COP-15 document (all 180 pages of it) can be found here:
United Nations Framework Convention on Climate Change, AD HOC WORKING GROUP ON LONG-TERM COOPERATIVE ACTION UNDER THE CONVENTION, Seventh session, Bangkok, 28 September to 9 October 2009, and Barcelona, 2–6 November 2009, FCCC/AWGLCA/2009/INF.2 15 September 2009, http://unfccc.int/resource/docs/2009/awglca7/eng/inf02.pdf.
If Barack Obama goes to Copenhagen, and pulls out his pen to sign the United Nations Framework Convention on Climate Change, he will have violated his oath of office, usurping powers beyond those enumerated and allotted to him under the Constitution on behalf of a foreign government.
There is a name for that crime and it carries a heavy penalty.
HENRY: In the country from which we are descended [Great Britain], they have real and not imaginary responsibility; for their mal-administration has cost their heads to some of the most saucy geniuses that ever were [Henry might have been thinking of Charles I]. The Senate, by making treaties, may destroy your liberty and laws for want of responsibility. Two thirds of those that shall happen to be present, can, with the President, make treaties that shall be the supreme law of the land; they may make the most ruinous treaties; and yet there is no punishment for them. Whoever shows me a punishment provided for them will oblige me.
Yes folks, I’m with Patrick Henry. What this country needs is a few thousand orange jumpsuits, custom fitted for politicians, NGO lawyers, State Department bureaucrats…. That treaties are populated with regulations via court rulings means we might well need another batch order for Federal judges too. For when a citizen of this country takes an oath of office, to serve, protect, and defend the Constitution, willful abuse of power, however seemingly reasonable or justified, should bring meaningful consequences; else that privilege will gravitate to those who would hold their oath meaningless.
To some small degree, culpability for this travesty can be laid at Henry’s feet for having chosen not to fight even a losing battle when he clearly knew what was at stake. Maybe, after risking his neck in the Revolutionary War and witnessing all the death and destruction, he was simply tired and disillusioned. Maybe he finally recognized that this was a far larger battle than simply throwing off the British crown. Still, would you want that acquiescence on your conscience?
Best we take that lesson to heart and start taking those baby steps toward making things more difficult for would be tyrants. In faith and with His help, maybe we can kill that rat once and for all.
10/26/09 - My thanks to Pascal for catching so many typos. It gets a bit tricky finding them on the note pad and this piece came together very quickly while in the exhausting process of releasing Shemitta.
Thanks, I needed the help.
Mark Edward Vande Pol is the author of Natural Process - That Environmental Laws May Serve the Laws of Nature. This book demonstrates why regulatory environmental control is fundamentally flawed and proposes a free-market alternative together with examples and implementing strategy. You can learn more about this book at http://www.naturalprocess.net.
Mr. Vande Pol's new book is about an amazing discovery on the Biblical Sabbath for the Land: Shemitta: For the Land Is Mine. The original system, never practiced or articulated, was an amazing and comprehensive plan for national defense, environmental health, and empowerment of the poor, presaging a pattern that spans the entire Biblical history, from Abraham to Revelation. You can learn more about it at www.shemitta.com.