[Peace-discuss] Trumping the Constitution (does that matter?)

[John W.]

Glad you responded in an eminently sane and logical way, Stuart.  The
"reasoning" on this list was getting so convoluted that I couldn't figure
out how to address it.

Legality and constitutionality are not synonymous but are closely
intertwined.  By definition, a law is legal once our legislative branch
passes it and the Chief Executive signs it.  It is also constitutional
unless and until the judicial branch declares it to be unconstitutional.

Morality is a much more subjective and amorphous concept that is only
tangentially related to legality and constitutionality.

Treaties and other international agreements are clearly provided for in the
constitution; they become part of the "law of the land" once they are
ratified by the legislative branch, and remain so unless and until they are
annulled or supplanted by the same legislative branch, or are declared
unconstitutional by the judicial branch.  Such international agreements,
though they be legal and constitutional, may or may not be "moral",
depending entirely on the perspective of the commentator.

While we on this list generally agree, at least broadly, on what is "moral"
and what is not, we don't always agree on morality.  And we tend to confuse
or conflate our own notions of morality with the more empirically verifiable
concepts of legality and constitutionality.

One or two more comments below, in the text.



On Wed, Aug 27, 2008 at 9:17 PM, Stuart Levy <slevy at ncsa.uiuc.edu> wrote:

On Wed, Aug 27, 2008 at 07:35:30PM -0500, E. Wayne Johnson wrote:
> > Robert,
> > The Constitution does not permit the citizens of this sovereign country
> > to be examined by government beyond our borders.



> That's interesting.  I know our Constitution limits the power that
> parts of our government can have, but does it claim to limit the powers of
> other governments too?  How?


I too am anxious to hear this answer.



> > The War in Iraq is also a violation of our constitution. One does not
> need
> > to look any further than that to
> > resolve our problem with the war.
>
> Well, hmm.  If our Congress *had* voted to declare war on Iraq,
> which it probably could easily have been talked into doing at the time
> if the Administration had cared to push the issue,
> then this war wouldn't violate constitutional requirements
> like those behind the War Powers act.
>
> But, it would still be illegal under international law, and it would
> still be in violation of treaties that the US has signed -- voluntarily,
> as Robert points out.


Therefore it would be unconstitutional, since the constitution provides for
international agreements.  If a state action violates one part of the
constitution, then it is unconstitutional even though it may be in
compliance with other portions of the constitution.




> The US gives up some autonomy in signing treaties,
> but gains something in return, of course -- like, better support for
> international stability -- or we wouldn't sign them.
>
> So if Congress had approved the Iraq war, it wouldn't be unconstititional
> (I think), but would still be illegal.


It would be both unconstitutional and illegal, in my view.



> And immoral.  And part of our
> pattern of imperial conquest.
>
> I'd still want to oppose this war just as much if Congress had voted
> for it -- hope you and all of us on this list would too.  So is
> unconstitutionality the problem?  Or do you mean something else?
>
> > Wayne
> >
> > Robert Naiman wrote:
> >> A voluntary agreement is not tyranny. To say it's so is to minimize
> >> tyranny. Iraq is under foreign military occupation. That's tyranny.
> >>
> >> Are you against all binding agreements, or just international treaties?
> >>
> >> On Wed, Aug 27, 2008 at 3:54 PM, E. Wayne Johnson <ewj at pigs.ag> wrote:
> >>
> >>> Robert,
> >>> The invasion of Iraq violated the American Constitution.  There is no
> >>> need
> >>> to
> >>> refer to so-called International law to make your case against the war
> in
> >>> Iraq,
> >>> as Bob points out.
> >>>
> >>> The problem with international law is that not all nations under
> >>> so-called
> >>> international law share
> >>> similar philosophies about what is good and just inside the borders of
> a
> >>> sovereign state.  Other countries
> >>> in fact the majority of other countries might think that strong
> >>> limitations
> >>> on personal mobility and freedom
> >>> may be appropriate including various sorts of personal documentations
> and
> >>> registrations from which until rather
> >>> recently Americans completely free.
> >>>
> >>> The hammer of international law can reach inside the borders of the US
> >>> just
> >>> as well as it
> >>> does in some banana republic, or eastern European or mideastern rogue
> >>> state,
> >>> and then
> >>> we would all be quite certain that our constitution is being violated.
> >>> Far
> >>> better to point out
> >>> the problem while it is still yet manageable.
> >>>
> >>> We should not tolerate any encroachment on the tenets of our
> Constitution
> >>> in
> >>> the name
> >>> of any high ideas like the UN or international law.  We cannot bear to
> be
> >>> subject to
> >>> the tyranny of rule from outside our borders.
> >>>
> >>> I am surprised that you suggest that we could permit such a thing.
> >>>
> >>>
> >>> Robert Naiman wrote:
> >>>
> >>> I'm stunned that I have to defend international law in these
> >>> precincts. In the salad days of my youth as a peace activist, one
> >>> could assume that people who considered themselves peace activists not
> >>> only respected international law, but saw themselves as obligated to
> >>> defend it.
> >>>
> >>> Is it your position, Bob, that the US is not bound by international
> >>> law? That the US invasion of Iraq did not violate US obligations under
> >>> the UN Charter?
> >>>
> >>> If this is not your position, why so glib about this crucial fact?
> >>>
> >>> On Wed, Aug 27, 2008 at 1:39 PM, Bob Illyes <illyes at uiuc.edu> wrote:
> >>>
> >>>
> >>> Wayne is exactly right regarding international law. Just because
> >>> something
> >>> is a law generated by constitutional procedures does not mean that it
> is
> >>> a
> >>> constitutional law. This definitely includes treaties.
> >>>
> >>> Permitting a UN security council decision to take us to war, for
> example,
> >>> violates the Constitution. This was finessed during the Korean War by
> >>> refusing to call it a war, as you doubtless all know, but this is
> >>> childish
> >>> nonsense.
> >>>
> >>> More recently, Congress declared that Bush could decide whether or not
> to
> >>> invade Iraq. This was legal, but not constitutional.
> >>>
> >>> It is also routine for the President to legislate (thing published in
> the
> >>> Federal Register have the force of law unless contested). Congress
> could
> >>> vote to give the President all legislative power. If signed, this would
> >>> be
> >>> completely legal, and completely unconstitutional.
> >>>
> >>> Organizations like the WTO are an anathema.  They make binding laws but
> >>> are
> >>> not elected.


I'd like to better understand organizations like the WTO.  Who created the
WTO, and under whose authority does it operate?  If it's an administrative
agency like the EPA, for example, then it's created by the legislative
branch but under the authority of the executive branch.  It's perfectly
legal, and its actions are constitutional unless they are found by the
judicial branch to be "arbitrary and capricious", or beyond the scope of the
agency.

The organizations that concern me the most are the "hybrids" of government
and private sector, like Fannie May and Freddie Mac, where private investors
reap the profits and then taxpayers absorb the losses.  The status of the
Federal Reserve and even the USPS has long confused me.  Same with the WTO
and the IMF.



> Is a treaty binding when it violates the constitution? I
> >>> don't
> >>> think so, but international crony capitalism claims otherwise.
> >>>
> >>> Bob
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