Two eminent scholars, Thomas Woods, Jr. and Kevin Gutzman argue the Constitution isdead not just dying, and they have identified a dozen ways—the dirty dozen—in which all three branches of the federal government have removed restraining elements from federal officials so they can do whatever they want! Number Ten is the transformation of the Chief Executive into Prince and the concomitant abuse of power in the exercise of foreign policy. The Constitution had first established a federal structure of government, and the Supreme Court was committed to it based upon Original Intent well into the Twentieth century, and even in the area of foreign affairs. Several cases during the 1920s and 1930s, however, upended the constitutional tradition.
At the Constitutional Convention in 1787 the Founders discussed areas in which states might not be as competent to judge or legislate in as, say, Congress. The Virginia Plan proposed by James Madison was actually modified at the Convention over the very question, whether Congress was to be altogether national in its scope and reach or whether it remained part of the federal construct involving dual sovereignty with states.Today there is little doubt that we have an operative national Congress, but the Founders agreed to a federal Congress instead, with specified powers mainly listed in Article I, Section 8. This was a key point in debates leading to ratification of the Constitution by the people of the several states. The new government would not be able to subvert state and local self-government for which the American Revolution had been fought!
Plain statements by Federalist proponents of the Constitution during ratification debates make clear their intent that treaty power dealt only with external matters and not with matters internal to the states. As if to make the point twice and doubly clear, the Tenth Amendment was added after ratification, i.e., after the language conveying treaty power, to make sure the Federal Government got the message: that it may not make treaties with foreign governments impinging on sovereignty, rights and freedoms inherent in each state. Congress may not, for instance, give a state's territory away to another nation.Congress cannot compromise gun rights, speech rights and freedom of religion in states, as these are not supposed to be subject to negotiation with foreign governments.
The case of State of Missouri v. Holland (1920), however, began a radical change to this presumption. Stating a majority opinion for the Supreme Court, Justice Oliver Wendell Holmes practically delimited the federal government's power to make treaties and said the Tenth Amendment did not apply. The case dealt with regulating, a.k.a. protectingmigratory birds through treaty. Holmes conceded that exclusive federal jurisdiction and power was not there to do it, at least not originally, but it needed to be. The policy in question was right, even if it were not constitutional. Therefore the Court set a new legal precedent against clear terms in the Constitution. It is worth noting, this is how law may become unconstitutional and ultimately de-legitimized. It is also how revolutions are justified within the bounds of constitutional republican theory.
The development in State of Missouri v. Holland came also upon the heels of the Seventeenth Amendment (1913), which transferred the power to elect U.S. Senators from state legislatures to election by popular vote in the several states. The Amendment had the immediate effect of removing political opposition in Congress to incursions on states' reserved powers. As it turns out, the Seventeenth Amendment unintentionally removed an important bulwark shoring up the Tenth Amendment. The Supreme Court took advantage of a unique opportunity, changing the legal precedent and making law that was essentially unconstitutional according to the terms of a previous constitutional regime—creating instead, a new ultra-if not supra-national constitutional regime we are still under. Theoretically nothing is beyond the bounds of national treaty making power, subject only to consent of the Senate by two-thirds vote.
The latter stricture too disappeared, and today we make treaties by Executive fiat even without the consent of the Senate. Here is how that happened. The case United States v. Curtiss-Wright Export Corporation (1936) dealt with a congressional attempt to delegate broad discretion to the president over the sale and export of arms and munitions to other countries. The Court in that case determined that the federal government through the president had power to undertake executive agreements as a substitute for treaties—binding international agreements not requiring ratification by the Senate! Not only did the case enable the legislative branch to delegate its discretion to another branch of government (something we saw again leading up to the invasion of Iraq), Court opinion reinforced the unhistorical account that sovereignty was unitary and invested with the federal government in the area of foreign affairs. As such it trumped state concerns, so that internal matters are really no objects. The distinction between internal and external was not simply blurred; rather, state internal matters were relegated to an entirely subordinate position. Federalism for all intents and purposes is undone.
On the current basis of Supreme Court opinion, the Constitution could not have erected an unchanging framework of government, since that framework as well as the rights and freedoms attended to by states, are subject to the federal government in the area of foreign affairs through treaty—and now through executive agreement entered into by a single person, the president—either of which can deal literally with anything whatsoever.This is bad news if one believes, as the Founders did, in the sovereign purview and prerogative of each state or in inviolable rights and freedoms. The final blow perhaps came with the case of United States v. Belmont (1937) involving Soviet nationalization of assets inside the State of New York. The Supreme Court ruled the state had to yield to an executive agreement that allowed for confiscation, irrespective of the constitutional injunction against taking property without just compensation. An international agreement made by the president simply countermands the policy or determination of any state. It is no wonder how the Supreme Court has begun to quote foreign case law and international standards to set legal and "constitutional" precedent.
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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford.Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article based on the book by Woods and Gutzman, Who Killed the Constitution?(2008). Email: wes@wesriddle.com.
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