3 ms·

I'm a bit puzzled by the reasoning, though. "The top court, with Justice Elena Kagan recused, said Congress’ move to re-copyright the works to comport with an

by lusr 15y ago

I'm a bit puzzled by the reasoning, though. "The top court, with Justice Elena Kagan recused, said Congress’ move to re-copyright the works to comport with an international treaty was more important." OK so they made their decision on the basis of there being a treaty... Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. This seems like a bit of circular reasoning.

michael_dorfman 15y ago
Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? That ought to do the job; Article VI of the Constitution plainly states that "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." In other words, if there is a treaty obligation, that trumps all other considerations. How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. Article II, Section 2 of the Constitution spells this out: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." This seems like a bit of circular reasoning. How so?
- pessimizer 15y ago
  Because the constitution is setting up the rules for what can completely superceed it. Basically: Congress and the President must follow these rules when governing the country, except when they agree not to, as declared in these same rules. I get the need for treaties and and federal laws to superceed local laws, but that laws have to be made pursuant to the Constitution while treaties only have to be made under the authority of the United States, defined as the President and 2/3 of the Senate, is odd. Seems as though they could legally eliminate all constitutional obligations through treaty, or even enter into a treaty to use a different constitution. http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_background http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_backgro...
  - lusr 15y ago
    Thanks for putting into words what didn't "feel" right to me; my use of "circular reasoning" wasn't quite the appropriate phrase, I guess.
  - michael_dorfman 15y ago
    This is not really circular at all, merely self-referential; the Constitution also provides a process for it to be amended, so any and all of it's provisions could be repealed or rewritten without having to get a foreign government involved in the equation at all. Of course, all of the parties involved (President, Senators, etc.) have sworn an oath to uphold the Constitution.
    - pessimizer 15y ago
      I understand the creepy feeling, though. And I'm pretty sure that through treaty, they've dramatically lowered the bar for entering into a treaty to simple Presidential whim. According to Wikipedia, "executive agreements" outnumber actual treaties by 10:1. http://en.wikipedia.org/wiki/Treaties#United_States_law http://en.wikipedia.org/wiki/Treaties#United_States_law
_delirium 15y ago
The US constitution's "supremacy clause" says that: 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 so treaties seem to have quasi-Constitutional authority, in that they are, like the Constitution, the "supreme law of the land". But the text doesn't clearly specify how to resolve conflicts between treaties and the Constitution itself. It's a bit of an open question since the U.S. has tended not to enter into treaties that present it square-on, but the Supreme Court seems willing to enforce some restrictions on what exactly a treaty can do. If there's a direct conflict, the Constitution supersedes treaties under http://en.wikipedia.org/wiki/Reid_v._Covert http://en.wikipedia.org/wiki/Reid_v._Covert, but in more gray-area cases the courts seem to give more leeway to treaties than normal laws, due to some vague mixture of the supremacy clause and general principles of deference to / non-interference with the "political branches" on foreign policy.
masklinn 15y ago
> Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? You're mis-interpreting things: as michael_dorfman notes, according to the constitution of the united states of america any international treaty signed by the United States's administration is the binding law of the land. > How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. The executive (the president) ratifies it and the Senate contents to it (with a two-thirds vote)
rayiner 15y ago
The Constitution itself creates an exception to the 1st amendment through the Copyright Clause. When two clauses of the Constitution are in tension, the Court usually applies a balancing test. Here, the existence of the international treaty weighs in favor of upholding the law.

by lusr 15y ago

michael_dorfman 15y ago

Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? That ought to do the job; Article VI of the Constitution plainly states that "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." In other words, if there is a treaty obligation, that trumps all other considerations. How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. Article II, Section 2 of the Constitution spells this out: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." This seems like a bit of circular reasoning. How so?

pessimizer 15y ago
Because the constitution is setting up the rules for what can completely superceed it. Basically: Congress and the President must follow these rules when governing the country, except when they agree not to, as declared in these same rules. I get the need for treaties and and federal laws to superceed local laws, but that laws have to be made pursuant to the Constitution while treaties only have to be made under the authority of the United States, defined as the President and 2/3 of the Senate, is odd. Seems as though they could legally eliminate all constitutional obligations through treaty, or even enter into a treaty to use a different constitution. http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_background http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_backgro...
- lusr 15y ago
  Thanks for putting into words what didn't "feel" right to me; my use of "circular reasoning" wasn't quite the appropriate phrase, I guess.
- michael_dorfman 15y ago
  This is not really circular at all, merely self-referential; the Constitution also provides a process for it to be amended, so any and all of it's provisions could be repealed or rewritten without having to get a foreign government involved in the equation at all. Of course, all of the parties involved (President, Senators, etc.) have sworn an oath to uphold the Constitution.
  - pessimizer 15y ago
    I understand the creepy feeling, though. And I'm pretty sure that through treaty, they've dramatically lowered the bar for entering into a treaty to simple Presidential whim. According to Wikipedia, "executive agreements" outnumber actual treaties by 10:1. http://en.wikipedia.org/wiki/Treaties#United_States_law http://en.wikipedia.org/wiki/Treaties#United_States_law

_delirium 15y ago

The US constitution's "supremacy clause" says that: 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 so treaties seem to have quasi-Constitutional authority, in that they are, like the Constitution, the "supreme law of the land". But the text doesn't clearly specify how to resolve conflicts between treaties and the Constitution itself. It's a bit of an open question since the U.S. has tended not to enter into treaties that present it square-on, but the Supreme Court seems willing to enforce some restrictions on what exactly a treaty can do. If there's a direct conflict, the Constitution supersedes treaties under http://en.wikipedia.org/wiki/Reid_v._Covert http://en.wikipedia.org/wiki/Reid_v._Covert, but in more gray-area cases the courts seem to give more leeway to treaties than normal laws, due to some vague mixture of the supremacy clause and general principles of deference to / non-interference with the "political branches" on foreign policy.

masklinn 15y ago

> Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? You're mis-interpreting things: as michael_dorfman notes, according to the constitution of the united states of america any international treaty signed by the United States's administration is the binding law of the land. > How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. The executive (the president) ratifies it and the Senate contents to it (with a two-thirds vote)

rayiner 15y ago

The Constitution itself creates an exception to the 1st amendment through the Copyright Clause. When two clauses of the Constitution are in tension, the Court usually applies a balancing test. Here, the existence of the international treaty weighs in favor of upholding the law.