Paradox of Self-Amendment by Peter Suber Section 17: Amendment by Treaty A. The treaty power v. the amending power The supremacy clause of the constitution, Article VI, §2, makes the federal constitution, federal statutes, and "all treaties made, or which shall be made, under the authority of the United States," the "supreme law of the land...anything in the constitution of laws of any State to the contrary notwithstanding." The clause clearly makes treaties superior to state statutes, even to state constitutions. Baldwin v. Franks, 120 U.S. 678 (1887), Wyers v. Arnold, 347 Mo. 413, 147 S.W. 2d 644, 134 A.L.R. 876 (1941), cert. den. 313 U.S. 589. But despite the supremacy clause there are exceptions, e.g. for state laws in exercise of the state police power, Lukich v. Dept. of Labor and Industries, 176 Wash. 221, 29 P.2d 388 (1934), state laws granting the right to administer an estate, Re Chaoussis' Estate, 139 Wash. 479, 247 P. 732 (1926), and generally for state laws that do not discriminate against aliens and whose reasonable requirements demand priority to treaties, Todok v. Union State Bank, 281 U.S. 499 (1930). The relation of treaties to state law is regulated by the supremacy clause; if it is complex, then we will not be surprised to discover that the relations of treaties to their co-supreme rules, federal statutory and constitutional rules, is even more complex. In one sense treaties and federal statutes are on a par, for when they conflict, the most recent prevails, whether it is a treaty or a statute. Cook v. U.S., 288 U.S. 102 (1933). This implies that Congress can nullify a treaty by making a statute. Lem Moon Sing v. U.S., 158 U.S. 538 (1895). But whether courts can nullify treaties as they nullify statutes, for conflicting with the constitution, is not as clear (see below). Although federal statutes and regulations are on a par for many purposes, treaties always prevail over regulations. Shizuko Kumanomido v. Nagle, 40 F.2d 42 (CA.9 1930).[Note 1] But it is the relation of treaties to constitutional rules that is most intriguing. The supremacy clause was almost certainly intended to make the federal constitution, statutes, and treaties superior to state law without asserting either their equality or subordination to one another. Hence it is not clear from the constitution alone whether treaties are higher, lower, or co-supreme with the constitution. Because federal statutes are clearly lower than the constitution, literal co-supremacy for all three types of law has not been read into the clause. The courts are left, then, to decide whether in a standoff between a provision and a conflicting treaty, the constitution is impliedly amended pro tanto by the treaty, or the treaty is impliedly amended (or suspended) pro tanto by the constitution. We may see the situation as a special case of an attempted amendment of an entrenched rule. Does the attempted amendment amend or violate the entrenched rule? In the present case, the federal constitution is "self-entrenched" by the supremacy clause and custom, but in neither case so clearly that treaties are put in an inferior class from which attempted amendments must be interpreted as violations.[Note 2] If treaties can amend the constitution, then the federal AC can be amended by treaty. Whether that has occurred would be worth knowing, certainly, but at best it could not be genuine self-amendment. For treaties are not made under the AC, but under the treaty-making clause (Article II, §2). However, an amendment of the AC by treaty could represent a limitation on internal sovereignty by external sovereignty, or of the rules constituting supremacy within the legal system by the rules constituting autonomy among the systems of the world.[Note 3] Strict self-amendment could occur if the rule of change represented by the power of treaties to amend the constitution (supposing it exists in our legal system) were self-applied. Almost certainly, this has never happened. But it is not impossible to imagine a treaty that limited the effect of future treaties on domestic law, especially on the federal constitution. Indeed, in different degrees this is not at all unusual. Article II of the Charter of the United Nations prevents the Charter's application to a nation's domestic law (but does not bar such application by other treaties). Article 46 of the Vienna Convention on the Law of Treaties (the "treaty of treaties") governs all treaties made after its own ratification (excepting only those that except themselves) and does not allow a violation of domestic law to prevent the effectiveness of an act of treaty ratification unless the violation is a "manifest" violation of a domestic "law of fundamental importance". If treaties could amend our constitution at all, then Article 46 of the Vienna Convention would limit that power for certain small class of treaties —those conflicting with the constitution that were ratified in violation of the constitution. But even that small limitation would not constitute the strict self-amendment of the power of treaties to amend the constitution unless the Vienna Convention were itself ratified under that power rather than, say, under the ordinary treaty-making power. More likely than a treaty that bars the effect of treaties on domestic constitutions is a domestic constitutional barrier to such effects. We have a good example from American history in the proposed Bricker amendment to the constitution. The Bricker amendment would have prevented treaties and executive agreements from amending the constitution, at least in a few basic ways. Because it would have limited the means by which the constitution could be amended, although not the means specified in the AC, it may arguably itself, if adopted, have been an example of self- amendment.[Note 4] More precisely, however, it would have been the amendment of an unofficial method of amendment by an official method. There is no clear-cut case in American history of a treaty amending the constitution. Treaties that might be read to conflict with the constitution might be "reconciled" with it by a judicial opinion that could amount to amendment by reinterpretation.[Note 5] This may have happened with the Migratory Birds Treaty with Great Britain (discussed below). Or treaties that might be read to conflict with the constitution might be enforced domestically without the question of amendment arising or without the question reaching adjudication on the merits. For example, a 1924 treaty with Great Britain allowed British Cunard Lines to bring liquor into American ports. The treaty was challenged for violating Prohibition, but the suit was dismissed because the plaintiff lacked standing. Milliken v. Stone, 16 F.2d 981 (CA.2 1927).[Note 6] 119