Tenth Amendment Center
August 18, 2010
“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 that 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.” – Article VI, Clause 2 of the U.S. Constitution
Recently I attended a gun show, where I handed out information material and answered questions on the Tenth Amendment Center. Several people were concerned about the U.S. making a treaty that would gut the U.S. Constitution and potentially take away firearms from law abiding citizens here in the U.S. They argued that the paragraph above from the Constitution places treaty law above the Constitution as the supreme law of the land.
Our Founders very clearly stated the conditions under which the U.S. Constitution could be amended, or changed, in Article 5. It is quite illogical to conceive that our Founders would write such a brilliant document to be the foundation of our union, only to create a giant backdoor for foreign governments to come in and destroy the liberty we had worked so hard to achieve. In fact, our 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
So, when I began re-reading this section of the Constitution I realized that they didn’t leave a backdoor, but in fact were expressly forbidding 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.
In reading through the entire Constitution, you will notice that whenever the Constitution refers to itself the verbiage “this Constitution” is used. The only exceptions to this are the President’s Oath of Office, where the phrase “the Constitution of the United States” is used, and here in the latter part of Article VI. In every other place where you find the word Constitution written in the Constitution itself, it is preceded by the word “this” making it 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.
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 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.
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 some well-meaning (and not-so-well-meaning) politicians may claim that they can legislate via treaty, this clearly was not the intent of our Founders. Will this knowledge stop those who would seek to take our freedoms from shredding the Constitution by attempting to pass such 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. More importantly, we can use this knowledge as intellectual firepower to stop the enemies of liberty and the Second Amendment from doing so.
Lesley Swann is the state coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.