Latest Pajamas Media Column (’There May Be No Coping with Copenhagen’) Is Up (Also: Copenhagen and the Constitution)

It’s here.

It will go up here at BizzyBlog on Sunday morning (link won’t work until then) after the blackout expires.

The succinct sub-headline: “Obama’s signature on a climate treaty in December could irretrievably compromise American sovereignty.”

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Copenhagen and the Constitution

The Copenhagen treaty’s “negotiating document” is here (2.1 mb PDF).

Read/peruse it for yourself and see if you agree with my core PJM paragraph:

From all appearances, agreeing to the COP would mean signing away a significant portion of our national sovereignty in the name of solving a problem that even former climate change cheerleaders are starting to doubt, which may just have been totally scientifically debunked, and whose origins are based on raw data that is apparently no longer available — all for the sole purpose of transferring vast amounts of wealth that will be spent on projects accomplishing very little of economic value, thus threatening to impoverish the entire world.

One person who is at least as concerned as I am about the treaty is Lord Christopher Monckton:

Transcript of the first half of Lord Monckton’s video excerpt:

…. At Copenhagen, this December, weeks away, a treaty will be signed. Your president will sign it. Most of the Third World countries will sign it because they think they’re going to get money out of it. Most of the left-wing regimes around the world like the European Union will rubber-stamp it. Virtually nobody won’t sign it.

I have read that treaty. And what it says is this: That a world government is going to be created. The word “government” appears as the first of three purposes of the new entity.

The second purpose is the transfer of wealth from the countries of the West to Third World countries in satisfaction of what is called coyly, “a climate debt” –because we’ve been burning CO2 and they haven’t and we’ve been screwing up the climate. We haven’t been screwing up the climate but that’s the line.

And the third purpose of this new entity, this government, if enforcement.

How many of you think that the word “election” or “democracy” or “vote” or “ballot” occurs anywhere in the 200 pages of that treaty? Quite right, it doesn’t appear once.

So at last, the communists who piled out of the Berlin Wall and into the environmental movement and took over Greenpeace so that my friends who funded it left within a year — because they’d captured it — now the apotheosis is at hand. They are about to impose a communist world government on the world.

You have a president who has very strong sympathies with that point of view. He’s going to sign. He’ll sign anything. He’s a Nobel Peace laureate; of course he’ll sign it.

And the trouble is this. If that treaty is signed, your Constitution says that it takes precedent over your Constitution. And you can’t resile from that treaty unless you get the agreement of all the other states (and) parties. And because you will be the biggest-paying country they’re not going to let you out. ….

Is it really that serious? Well, only two other things potentially stand in the way.

• First, the U.S. Senate would have to ratify such a treaty. It would be dangerous to bet against that.
• Second, Lord Monckton’s take on the superiority of the treaty over our Constitution has never been tested. It is, like many other things relating to our Founding Documents, incorrect on the merits but widely understood by modern legal “scholars” and supposedly settled “wisdom” to be the case.

The relevant passages from the Constitution are these:

Article II, Sec. 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….”

Article III, Sec. 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority….”

Article VI: “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.”

Article VI to the one-world government folks means that treaties automatically trump the Constitution. A reasoned reading of the Article really tells us that treaties change “the Law of the Land,” but that “the Law of the Land” is subject to the El Supremo document above all, the Constitution.

To see an expression of what the conventional wisdom has been, you can go back to John Foster Dulles, who was Secretary of State under President Eisenhower. No, he’s not normally seen as an anti-constitutionalist, but that’s actually the scary point. The view that follows has been considered “mainstream” by Washington’s elites for decades.

In an April 11, 1952 speech in Louisville less than a year before he became Secretary of State, Dulles told his American Bar Association audience that:

Treaties make international law and also they make domestic law. Under our Constitution, treaties become the supreme law of the land…. [T]reaty law can override the Constitution. Treaties, for example, … can cut across the rights given the people by their constitutional Bill of Rights.

Thus, the conventional “wisdom” is that any treaty, no matter how outrageous, will override the Constitution. To exemplify just one extreme from this point of view, as long as the President and 2/3 of the Senate agreed that our young people must be conscripted for two years to join United Nations peacekeepers and serve overseas in whatever capacity the UN thinks is appropriate, that would be that.

Unsurprisingly, the Founders in their writings, including Jefferson, Madison, and Hamilton, totally disagree:

“I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President and Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence.” (Thomas Jefferson, Writings of Thomas Jefferson, Bergh 10:418-419. [1803])

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As he debated the treaty making power which was granted to the President and Senate as found in the Constitution, James Madison addressed the logical limits to the treaty making power, and made this statement:

“Does it follow, because this power is given to Congress, that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.” (James Madison, Jonathan Elliot, Debates on the Adoption of the Federal Constitution, Vol. 3, p.514)

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Alexander Hamilton, one of the most forceful of the Federalists and one who often clashed with Jefferson, nevertheless agreed with his distinguished adversary on this important point. Hamilton wrote:

“The only constitutional exception to the power of making treaties is, that it shall not change the Constitution…. On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null.”

“A treaty cannot be made,” Hamilton maintained, “which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States.”

The author of the linked item properly concludes that:

The Founding Fathers of this Nation unquestionably felt that the power to make treaties did not embrace the power to modify the Constitution. In their view, the treaty-making power was a limited grant of power that could not undermine or destroy individual God-given rights, or the structure or framework of the limited, carefully defined government they established.

In honest circumstances, Lord Monckton’s ultimate fears of lost sovereignty would be overblown. But we’re not in honest circumstances. If the Copenhagen agreement ever got through the Senate, the establishment’s repeated remonstrances that “Copenhagen is now the law of the land” would attempt to drown out sensible, Constitution-based opposition.

Such drown-outs have already been acceptable, or at least acquiesced to, in other areas:

• Gay marriage has never been legalized in Massachusetts (”The Goodridge ruling resulted in a complete cave-in by politicians of both parties on this issue. Same-sex ‘marriage’ is still illegal in Massachusetts. On November 18, 2003 the court merely ruled that it was unconstitutional not to allow it, and gave the Legislature six months to ‘take such action as it may deem appropriate.’” The Legislature has never taken action.). Yet it’s supposedly a settled matter that it has.
• The Supreme Court’s Roe v. Wade decision is supposedly “the law of the land.” No it’s not; it’s a ruling in one case that has never been accompanied in most states by the enabling legislation required to overturn laws against the practice that have never been formally repealed in most if not all of them. Absent those legislative repeals, abortion is still illegal (it is probably also presumptively illegal because the practice violates the God-given entitlement to life recognized in the Declaration of Independence).
• The Obama administration has simply seized unconstitutional powers in many areas, not the least of which involve taking over or intervening in the management of supposedly private businesses and recasting bankruptcy and contract law on the fly. Barely anyone has objected on constitutional grounds.

With this disturbing backdrop, if the elites say that a Copenhagen agreement’s effect on the Constitution is what they say it is, who will stop them?