In short, any UN resolution has ZERO power here or anywhere. None. Plus our treaties aren't with the UN.

I asked if the 10A was a legitimate argument for rebuffing their complaint.

Just like the US Constitution trumps state law. Unless the federal law is ruled unconstitutionalnby the SCOTUS.

Various founders, such as Hamilton, Madison, and Jefferson, all commented that the treaty power does not allow Congress to dissolve Constitutional rights.

Edit: However, if Congress did have the power to prohibit gay marriage through its own legislation, possibly through the Commerce Clause, it could agree to a treaty which accomplishes the same thing as Congressional legislation.

And that's not because I'm pro-gay marriage but because I'm anti-absurd. It seems quite a stretch to make it a commercial issue.

It would represent an amendment process contrary to the explicit process set out in the Constitution, one which sets a very high bar (much higher than only the signatures of 2/3s of the Senators and the President).

They are usually re trade. States couldn't enact tariffs on goods in contravention of a treaty, for example. Gay marriage isn't something the feds regulate as an enumerated federal Constitutionaln power like international trade.

which treaty obligations are being violated?

and as such the states retain authority over the issue so long as the issue remains inside their state. Perhaps if the states were exporting cannabis the feds would have a say but until they do the supreme law of the land says, "not so much."

that's a specious argument; the power to regulate cannabis, or alcohol, or anything else, comes from the Commerce Clause in the Constitution.

"with foreign Nations, and among the several States, and with the Indian tribes" it has been roundly abused. the clause should have no effect on the use of a substance... TRADE of that substance across state/national boundaries are what SHOULD be regulated by the gov't.

sP

And again, federal supremacy; the states have no right to nullify federal laws. (And modern interpretations of the commerce clause say that local laws allowing production of something prohibited in interstate commerce tend to undermine the federal laws prohibiting the commerce.)

When I went to law school (a long time ago) we had several discussions about whether a treaty could trump the Constitution and concluded in most of these discussions, as you did, that "the Constitution is the treaty's only source of authority and the lesser cannot overtake the greater". I don't know of any case in which the Supreme Court has ruled on a treaty that may contradict the Constitution.

As for the 10th Amendment, "states rights" are reserved to states only if the issue is not one that is covered by the Constitution. Pot could be a federal question rather than reserved to the states under the commerce clause for instance. Thus there is legitimate concern that the laws passed by states legalizing pot contradict federal laws making it illegal. I can't see how individual states can legalize pot while it remains a federal crime without ignoring the Constitution.

Doesn't the Constitution specify interstate commerce? Pot that was grown, sold and consumed exclusively within the borders of the legalizing state would fall outside federal purview, would it not?

It has been very broadly interpreted by the courts to include all sorts of things that, on first blush, appear to take place only within a state. An argument can easily be made that just about anything sold or bartered affects interstate commerce.

Things like pollution produced solely within a state have been ruled to affect interstate commerce because the wind can blow it across state lines, so I think you can get the idea of how broadly the commerce clause has been interpreted. If I had to guess on a particular issue I would always guess in favor of it coming under the commerce clause unless a court said otherwise.

See Gonzales v Raich, 545 U.S. 1 (2005), Stevens, J for the majority:

.. which affects intrastate commerce.



http://en.wikipedia.org/wiki/Wickard_v._Filburn

rather than any plain reading on the Constitution.

blech

So, could a pot grower in Colorado be exempt? Who could honestly say he would grow so much pot he would effect interstate commerce when other states aren't allowed to grow or export pot?

1791 was different.


At this point the only powers the states still have are things like school books and trash collection days.


I'm not sure exactly what legal gymnastics are necessary to make the Commerce Claus apply here but I am reasonably sure there is a way. If I had to guess I would go with the United States v. Wrightwood Dairy Co. decision (1942).

http://en.wikipedia.org/wiki/Commerce_Clause

^snip^

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. [ ...] The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. [ ... ] It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence, the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.[13]

Remember that the original Violence Against Women Act Or at least part of it was Struck down by the Supreme Court As being in violation of The constitutional powers of Congress Under the Commerce Clause. There was also a case about gun control where the Supreme Court Restricted the Commerce Clause power. I actually think those were pretty good decisions as the prior case law interpreting the Commerce Clause super broadly was pretty ridiculous.

With regard to international law, the U.S. is bound by its treaty obligations, meaning that the states cannot legally pass legalization legislation. However, there isn't an international organization that enforces such obligations (ultimately by force), so it's moot as a practical matter.