Myth: The President can make treaties between the U.S. and other nations. International law can and should be used in U.S. courts.
Truth: The Constitution (in Article II, Section 2) states that the President has the “Power, and by the Advice and Consent of the Senate, to make Treaties, provided two thirds of the senate present concur.” Federalist 64 clarifies that “Neither the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are balanced as to produce security to the people.” Recent presidents have evaded this constitutional requirement by signing “executive agreements,” in violation of original intent and the “separation of powers” principle, yet the Senate has not shown the will to defend their power in this area.
Perhaps even more troubling is the frequency with which international law is being applied by the courts to areas clearly within national (or even state) jurisdiction. These threats come from such things as customary international law (more about that here) and U.N. treaties and resolutions which the Senate has not ratified. One of the most dangerous to American liberty is the U.N. Convention on the Rights of the Child.
Another area of importance is the court system’s use of international standards in determining whether punishments given out under state and national laws are “cruel and unusual.” Americans declared themselves independent from Great Britain and fought a long and bloody war of independence in order to protect their right to make laws for themselves. Allowing the courts to incorporate international law over and against domestic law violates this fundamental principle of American government.
