The Preservation of American Sovereignty

Sovereignty is fundamentally about power; specifically, the supreme power that a nation has over the making, executing, and enforcing of its own laws. The election of Donald Trump could mark a major turning point in preserving it.

And not a moment too soon. There has been a decades-long shift of power to international organizations, effectively replacing American law with foreign law, through the deeply entrenchment of their principles into America's legal system.  Consequently, the threats to American law will remain, unless these threats are addressed at their root.

President Trump’s withdrawal from the Trans-Pacific Partnership, and possibly from the Paris agreement on the environment, while positive, does not address the gravest threats to American sovereignty, which are those principles that have set the stage for overriding the Constitution (and clauses from the Bill of Rights) with foreign law, including with the so-called International Bill of Human Rights.  The way this was done may seem harmless at first glance, but in fact is anything but.

The International Bill of Human Rights consists of several international documents, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.  On paper, these documents are not enforceable in the United States. The declaration is not a treaty and therefore is not legally binding. The covenant contains conditions -- known as reservations, understandings, and declarations (RUDs) – that were attached by the United States during ratification rendering it unenforceable.  Yet to say it’s no threat to sovereignty is misleading.

That’s because the federal government has already ratified treaties (others are discussed below) that would replace American law and American definitions of human rights with foreign law and foreign definitions of human rights.  And while the International Bill of Human Rights and other human rights treaties are currently not enforceable in the United States, the danger remains because the federal government has left the door open to begin enforcing the terms of these treaties in the future.

The Vienna Convention on the Law of Treaties declares that conditions attached to a treaty are null and void if they are incompatible with the object and purpose of a treaty (i.e., if the conditions make a treaty unenforceable).  And while the United States has not ratified this document, Progressives and liberals have adopted this argument.  Furthermore, the Department of State has already indicated that the United States accepts "many" of the Vienna Convention's provisions.

Additionally, Progressives and liberals have adopted the argument that RUDs are incompatible with the U.S. Constitution because Article VI declares that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

Moreover, Progressives and liberals have adopted the argument that the Universal Declaration of Human Rights has become legally binding because it has become customary international law (i.e., it has become accepted by the world's nations as law).

So, in short, every human rights treaty ratified by the United States would be enforceable, and the Universal Declaration of Human Rights would be legally binding, if these (or similar) arguments were to be accepted by a future Supreme Court.

Notably, five of the eight justices on the Supreme Court today, including Republican-appointed Anthony Kennedy, already support incorporating principles of foreign law into their interpretation of the Constitution.  Therefore, even if President Trump fills the Court's open seat with a strong conservative, the majority of justices will still hold the globalist view.

Additionally, there is a long line of Republican-appointed justices like Kennedy who, once safely on the Court, have embraced Progressive-liberal positions; abortion, gay marriage, and the Affordable Care Act (i.e., Obamacare) were all decided by such justices, to give only three examples.  Furthermore, the Court has a long record of waiting until what it believes is the right moment and then delivering an opinion that -- without a shred of support for it to be found in the Constitution's text or history -- imposes a Progressive-liberal position on the nation and drastically transforms American law.

Finally, while the Court in the past (specifically, four of the nine justices, in one case) said that treaties have to comply with the Constitution, the Court on numerous occasions has reinterpreted the Constitution in order to make the Constitution comply with Progressive-liberal positions, as mentioned already.  Moreover, the Court has cited principles of foreign law when doing so.

Of course, along with Supreme Court justices, there are members of Congress (and former presidents) who also support making American law conform to international standards.

Apart from the erosion of American sovereignty, the other consequences of making American law conform to international standards are considerable.  Undeniably, there is a massive difference between American definitions of human rights and foreign definitions of human rights.  For example, the rights of the people -- as set forth in the Declaration of Independence and secured by the Constitution -- are individual rights, whereas under international law, individual rights are repeatedly eclipsed by group rights.

This stark contrast in the definition of rights can be seen by looking at freedom of speech.  In Europe, many nations are using so-called "hate speech" laws to investigate, charge, prosecute, and convict individuals for speech that is merely "offensive" to members of groups.

On the one hand, nations are using such laws to silence Christians.  For example, in the United Kingdom, a Christian preacher was arrested for saying that homosexuality is a sin, another person was threatened with arrest for reading from the Bible in public, and a small business owner was investigated for showing Bible verses on a television screen.

Conversely, nations are using hate speech laws to shield Islam from criticism.  For example, also in the United Kingdom, during a campaign speech, a political candidate was arrested for quoting a criticism of Islam made by Prime Minister Winston Churchill, while in France, a politician was convicted for saying that French security is at risk because of the rapid growth of the nation's Muslim population.

The United States has already ratified two treaties that require the ratifying nations to prohibit hate speech: the International Convention on the Elimination of All Forms of Racial Discrimination, and the International Covenant on Civil and Political Rights.  But the United States has attached RUDs to both treaties, so supposedly, they are not enforceable.

Nevertheless, the federal government has already signed a significant part of their RUDs away, while merely attaching conditions that put the fateful day off until a later time.

That threatens freedom of speech, and it’s not the only threat. The right to keep and bear arms is also a target as Progressives and liberals seek to accomplish with international law what they cannot accomplish with American law.

Furthermore, progressives and liberals use arguments that are not directly related to international agreements involving the United States.  For example, the Constitution (Article I, Section 8, Clause 10) grants Congress the power to define and punish "Offences against the Law of Nations."  And consistent with the globalist view, Progressives and liberals have argued in favor of reinterpreting the phrase "the law of nations."  Notably, Beth Stephens, a law professor at Rutgers, asserted, "When the nations of the world decided that domestic human rights violations were a topic of international concern, the implementation of human rights norms became a federal -- not a state -- concern."  Stephens claimed that "the Offenses Clause authorizes congressional regulation of any topic governed by the law of nations."

Basically, following this argument, federal law would override state law, and then in turn, international law would override federal law.

Now, with regard to public acceptance of such an outcome, a few sobering facts are worth considering.  For decades, Progressives and liberals have been using the public schools, the mainstream media, and the entertainment industry to indoctrinate people, slowly turning more and more people against American definitions of human rights in favor of international standards, while Supreme Court justices have been publicly questioning the U.S. Constitution and openly recommending foreign constitutions and legal documents.  Besides this, during much of this period, the federal government has been permitting the legal immigration of about one million people a year, the vast majority from nations and regions that support international standards.

The situation concerning the replacement of American law with foreign law is like a ticking time bomb, set to explode.  For its part, the Trump administration has four (or eight) years to defuse it.

Paul Pauker is the author of Morality and Law in America. He also runs a site dedicated to advancing the unalienable rights to life, liberty, and property.