Treaties and the Constitution
Henry Lamb repeats the canard that treaties can amend the Constitution without the requisite approval of the states. (*)
Treaties cannot amend the Constitution. In US law, treaties are equivalent to congressional legislation. Every treaty must conform to the same constitutional limitations that regular congressional legislation must. A treaty may regulate interstate commerce, for example, but only because the Constitution allows Congress to regulate interstate commerce.
The First Amendment denies Congress the power to abridge the freedom of speech. If there were a congressionally-approved treaty that purported to abridge the freedom of speech, that treaty would be unconstitutional.
The Constitution requires treaties to pass the Senate with a two-thirds majority. Some treaties, however, pass into law with only a simple majority by the House and the Senate. How can both be “treaties?”
Article II, Section II, Clause 2 of the Constitution provides that 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.” (†) Since ordinary Congressional legislation passed by a simple majority of both houses has the same force of law as treaties, and such legislation can be reciprocated by passing into law the same text as a “treaty” in a foreign country, both treaties adopted by two-thirds of the US Senate and treaties adopted by both houses of US Congress are equal in their force of law as applied to the USA, and neither sort of treaty—regardless of under which one of the two methods it was adopted—amend the US Constitution, the supreme law of the land.
On the other hand, there does remain a question of whether the Supreme Court of the US would find a treaty to be unconstitutional if it purported to regulate domestic matters that are outside the domain of the federal interstate commerce regulatory power as under the Lopez decision of 1995. Lamb would be concerned that the power of the federal government can extend through the treaty power, nullifying the notion that the federal government is a government of limited powers. While I would agree that federal power should not be extended through the Necessary and Proper clause to entirely new areas of federal power, I do not share his concern that the barrier will be breached. We will see.
(The argument that natural law trumps the Constitution and all other laws is beyond the scope of this discussion.)