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Bond v. US and the treaty power
An interesting case. The US entered into a treaty to prohibit the development, etc., of chemical weapons. Congress then enacted a statute prohibiting the possession or use of chemical weapons.
Mrs. Bond discovered her husband was having an affair, and dumped toxic chemicals around the other lady's house and car, which gave her a minor burn. Some overzealous Asst US Attorney prosecuted Bond for violating the anti-chemical weapon statute and she pled out, reserving the right to appeal.
The majority ducks the constitutional issue by holding that the statute can be construed so as to exclude what Bond did.
Three Justices concur in the result, while reaching the constitutional issues:
Justice Scalia argues that the power to "make" treaties, combined with the "necessary and proper clause" does not equal a power to execute treaties by penalizing conduct (unless the statute falls within some other grant of power to Congress). He replies to the objection that that would mean the US could enter a treaty without being able to carry it out with the observation that the Framers set up that way: the President and Senate can always make a treaty, but only the House, Senate, and often President can enact a law.
Justices Thomas and Alito concur in the result, on the grounds that the treaty power is properly limited to international affairs, not to regulation of purely domestic acts.
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I thought the two most interesting things from the gun law angle were the references to United States v. Bass (1971), and the implications for the Administration's telegraphed intent of enforcing the UN small arms treaty on the US.
The three concurrences signal strongly that those Justices will not stand for it. Of the other six, four are firmly aligned with expanding domestic Federal power by any stratagem or ruse that falls handy, and two seem to be, at best, inconstant.
Part of being a republican is the firm requirement of being pound smart and penny foolish. That, and not being able to see the forest because of the trees...
"... the President and Senate can always make a treaty, but only the House, Senate, and often President can enact a law."
US Constitution, Article I, Section 1: ALL legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. (caps are mine)
The word "All" excludes any other branch from creating legislature lawfully.
These are the duties of all US presidents, they are forbidden to do any others. Article 2, Section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Section 3: He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
According to OUR legitimate government, the US Constitution and all that is in Pursuance thereof it, US presidents and the rest of the executive branch are forbidden to make any laws; as are US judges and the rest of the judicial branch.
Nor are judges given the power to interpret the US Constitution, they gave it to themselves. Nor are judges in office for life, but are ALLOWED to keep their position as long as they use "Good Behaviour" in the courtrooms. "Good Behaviour" is doing their duty as the US Constitution assigned and whatever state Constitution assigned that branch, and keeping their oaths of office.
Article III, Section 1: The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
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.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;..."
James Madison, Federalist 39, 250—53:
“According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behaviour.”
James Wilson, Pennsylvania Ratifying Convention: “... The tenure by which the Judges are to hold their places, is, as it unquestionably ought to be, that of good behaviour.”
Tucker’s Blackstone, Vol I, Chapt 1 regarding how the Oath applies to the judiciary: “But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the supreme law of the land, the U.S. Constitution.
Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice;...”
Thomas Jefferson: “…To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”
Thomas Jefferson: “The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
James Madison: “But it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort..."
Alexander Hamilton: "Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
The first Chief Justice, John Jay, told jurors:
"You have a right to take upon yourselves to judge both the facts and law."
And “The jury has the right to judge both the law as well as the fact in controversy.”
Thomas Jefferson: “I consider [trial by jury] as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”
John Marshall: Opinion as Chief Justice in Marbury vs. Madison, 1802: "The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."
John Adams: “It is not only his [the juror’s] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Samuel Chase: “The jury has the right to determine both the law and the facts.”
Patrick Henry: “Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off…This gives me comfort, that, as long as I have existence, my neighbors will protect me.”
Thomas Jefferson: “…To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”
ames Madison, Federalist 46, 315-23: “The Foederal and State Governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes... They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone; and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expence of the other. Truth no less than decency requires, that the event in every case, should be supposed to depend on the sentiments and sanction of their common constituents.”
Yes, We the people decide if a judge is using "Good Behaviour" in the courtrooms.
The judicial branch was to be independent of both the executive and the legislative branches and the states so that they could make the decisions as the US Constitution required of them, was in "in Pursuance thereof the US Constitution or not" before anything else was decided. Only Constitutional law is applicable here in the USA or any treaties that were made "in Pursuance thereof" the US Constitution.