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]]]]]]]]]]] CONSTITUTIONALITY OF NIXON ABM TREATY [[[[[[[[[[[[
Physics Today, April 1986, (12/2/1988)
through January 1987
[Kindly uploaded by Freeman 78753PHIL (the author of the challenge).]
[PHYSICS TODAY, Apr. 86:]
Dear Friends,
Dr Panofsky's statement that "Nothing in the U.S Constitution
dilutes the responsibility of a president to comply with existing
treaties in force." [Physics Today, June, 1985, p. 37] ought to be
evaluated in light of the actual text of the Constitution itself.
Section 8 of Article I of the Constitution specifies, in clause
15, that "Congress shall have the power...To provide for calling forth
the militia to... repel invasions;". Article IV, section 4 charges the
United States with the responsibility to protect each of the States
from invasion. Finally, Article II of the Bill of Rights guarantees
that our right to "keep and bear arms", within the context of a well
regulated militia, "shall not be infringed."
While it is true that Article II of the main body of the document
grants the President the power to make treaties (Section 2, clause 2),
and it is also true that these treaties "shall be the supreme law of
the land" (Article VI, Section 2), it is nowhere stated that this
treatymaking power shall override the Bill of Rights or the main body
of the Constitution. In fact, Article VI, Section 2 specifies only
that the treatymaking power takes precedence over "...anything in the
Constitution or laws of any STATE to the contrary notwithstanding."
(Emphasis mine).
In fact, the very last clause of Section 10 in Article 1 allows the
States to defend themselves if "...actually invaded, or in such
imminent danger as will not admit of delay."
Nothing in the Constitution supports the conclusion that the
treatymaking power is arbitrary and unlimited and supersedes all
individual rights guaranteed us by the text of the Constitution and
the Bill of Rights. One can readily infer, however, that all arms
limitation treaties which infringe on our right to have our military
forces keep and bear defensive weapons of our choosing are
unconstitutional and therefore illegal. This would apply specifically
to the ABM treaty as well as both versions of SALT.
Because I do not believe that the framers of the Constitution
would have subordinated their rights or those of their countrymen and
descendants to any arbitrary power, foreign or domestic; and because
the legal language supporting this conclusion is clear and precise, I
submit that the ABM treaty is unconstitutional and illegal.
J.H. Phillips
Austin, Texas
PANOFSKY REPLIES:
J.H. Phillips raises the interesting point whether ANY arms-control
treaty violates the Constitution of the United States. He agrees that
Article VI, paragraph 2 of the Constitution states that treaties
entered into by the United States preempt the constitution or laws of
any state that might have contrary provisions. Indeed, the United
States Constitution makes the President the Commander in Chief and
gives him responsibility to conduct foreign affairs and thereby
provide for the national security. Yet one must recognize that
increased armaments and increased national security are by no means
synonymous; in fact, post-World War II history has amply demonstrated
the contrary. The power of the President to negotiate treaties, even
if they conflict with private rights involving arms or ownership of
property, has been confirmed by numerous Supreme Court decisions.
Negotiated arms control is rightfully considered a component of the
conduct of foreign affairs. According to Arrticle VI of the
Constitution, treaties are the supreme law of the land, subject only
to other provisions of the Constitution. They can be modified by
mutual renegotiation or abrogated unilaterally under specific
provisions that provide for prior notice and invoke the supreme
national interest of one of the signatories.
The specific claim by Phillips is that arms-control treaties are in
conflict with the provision of Article II of the Bill of Rights that
"a well regulated militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed." No court has ever held the Second Amendment to impose any
limitation on the President's power to conduct foreign affairs, but
the specific relation of arms-control treaties to Article II has, to
the best of my knowledge, never been explicitly litigated. In view of
the foregoing it seems to me to be patently absurd to claim that the
US President and Executive Branch cannot negotiate and sign a treaty
that limits weapons by all signatories if the President believes this
to be in the security interest of the United States, and I see nothing
in the Constitution that would prevent such a treaty from entering
into force once the Senate, by a two-thirds majority, has recommended
its ratification to the President and the President has then executed
the instruments of ratification. The Constitution has done well in
weathering the transition to the nuclear age. If Phillips were
correct in his interpretation it would be a sad day indeed.
Wolfgang H.K. Panofsky
Stanford University
Stanford, California
1/86
TREATIES AND THE CONSTITUTION
The letter by J H Phillips and the response by Wolfgang K H
Panofsky (April, page 90) raise interesting issues regarding the
relationship between the Federal treaty-making power and the
constitutional rights guaranteed by the Bill of Rights. Although both
Phillips and Panofsky deal solely with issues arising under the "right
of the people to keep and bear arms" provision of the Second Amendment
and with alleged infringements on this "right of the people" by arms
control treaties, the issues are significantly broader in scope and
deserve more careful analysis.
According to Panofsky, the constitutional authority of the
executive branch to conduct foreign affairs extends to the power of
the President to negotiate arms control treaties, and such treaties
when ratified by the Senate may abrogate any provision of the Bill of
Rights. Although Phillips disagrees, both Phillips and Panofsky limit
their discussion to consideration of the Second Amendment in the Bill
of Rights. However, there is nothing in the underlying issue that
should limit the argument to the Second Amendment; rather, the issue
should be treated more broadly for a better understanding.
For example, it is not difficult to imagine a treaty with the
following provision:
Due to the utmost importance of this
arms control treaty and the practical
reality that it cannot be successfully
implemented without mutual trust and
harmonious relationships between the
signatory nations, any critical or
derogatory remarks, oral or written,
against a signatory shall constitute a
criminal offense against that signatory,
and such signatory may search and seize
any offending writings as well as punish
the person making said criticism, in such
manner as it deems appropriate, including
trial by judge without jury in the courts
of the signatory as it deems appropriate.
Of course such a treaty would clearly abrogate the provisions of
the Bill of Rights contained in Amendments I (free speech and press),
IV (unreasonable search and seizure), V (due process of law), VI
(right to counsel) and VIII (trial by jury). But in spite of the fact
that the constitutionality of treaties that conflict with the Bill of
Rights has never been litigated, some obvious conclusions as to how
the US Supreme Court would treat this sort of treaty can be drawn.
Moreover, that the precise issue has never been litigated does
not justify Panofski's conclusion that it is "patently absurd" to
claim that the treatymaking power cannot supersede the Bill of Rights.
It is true that a treaty can override a state constitution or a state
statute, but a Federal statute passed at a later date than a treaty
prevails over the treaty, according to a line of US Supreme Court
cases beginning with "Head Money Cases," 112 US 580, 598-590 (1884).
It is also well established that even Federal statutes violative of
the Bill of Rights can be declared null and void by the judiciary.
Thus, since Federal statutes can abrogate treaties, statutes have at
least as high a dignity as treaties, and since statutes violative of
the Bill of Rights can be invalidated by our courts, so can treaties.
Panofky's conclusion that arms control treaties can abrogate the
Bill of Rights is thus, fortunately for America, clearly unwarranted.
David I. Caplan
New York, New York
Richard David Laumann
Berkeley Heights, New Jersey
5/86
Panofsky replies: David I. Caplan and Richard David Laumann state
that "according to Panofsky the Constitutional authority of the
executive branch to conduct foreign affairs extends to the power of
the President to negotiate arms control treaties and such treaties
when ratified by the Senate **may abrogate any provision of the Bill
of Rights** (italics mine).
My response in the April issue said no such thing. I stated
"According to Article VI of the Constitution, treaties are the Supreme
law of the land, subject only to other provisions of the
Constitution." In other words, I clearly stated that treaties do not
preempt the Bill of Rights. Thus the letter by Caplan and Laumann is
attacking a statement that I did not make.
Wolfgang H.K. Panofsky
Stanford University
Stanford, California
10/86
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