[9236] in Commercialization & Privatization of the Internet
US Constituion and Treaties
daemon@ATHENA.MIT.EDU (rob horn)
Fri Dec 24 10:46:07 1993
Date: 24 Dec 1993 10:25:16 -0500 (EST)
From: rob horn <horn%temerity@leia.polaroid.com>
To: com-priv@psi.com
There was an earlier claim that treaties are co-equal with the US
Constitution. This is an incorrect parsing of Article VI, section 2. The
correct parsing is that treaties are superior to all state laws and
constitutions. A ratified treaty must "be regarded in courts of justice
as equivalent to an act of the legislature" (Frost v Neilson, 27 US (2
Pet) 253, 314 (1829) (Marshall, CJ). It is thus subordinate to the US
Constitution. This was most strongly re-affirmed in Reid v Covert (354 US
1, 16-17 (1957).
In the context of com-priv discussions around free speech this means that
no treaty can be used to reduce free speech within the US. To the extent
that the treaty would do this, the US Government should be in
non-compliance with the treaty. But only to the extent necessary to avoid
Constitutional problems. Other terms of the treaty retain the force of
law. Since the Constitution is law only on US territory, the courts have
held that constitutionally prohibited actions are permissible at borders
and outside US territory. So speech restrictions would be permissible if
they can be shown to have no impact within the US.
A fuller description of the status of treaties can be found in various
books. I personally like the summary in American Constitutional Law, by
Laurence Tribe. Chapter 4, section 4. I recommend this book to people who
are interested in a deeper understanding of constitutional law. It is one
of the more readable law books. (If you care, I also found the first
edition superior to the second edition. I think the second contains
considerably more personal legal opinion from Tribe than the first
edition.)
Rob Horn horn@temerity.polaroid.com
