]]]]]]]]]]]      CONSTITUTIONALITY OF NIXON ABM TREATY   [[[[[[[[[[[[ 
                    Physics Today, April 1986,            (12/2/1988)
                      through January 1987

[Kindly uploaded by Freeman 78753PHIL (the author of the challenge).]

[PHYSICS TODAY, Apr. 86:]
Dear Friends,
     Dr Panofsky's statement that "Nothing in the U.S Constitution 
dilutes the responsibility of a president to comply with existing 
treaties in force." [Physics Today, June, 1985, p. 37] ought to be 
evaluated in light of the actual text of the Constitution itself.
     Section 8 of Article I of the Constitution specifies, in clause 
15, that "Congress shall have the power...To provide for calling forth 
the militia to... repel invasions;". Article IV, section 4 charges the 
United States with the responsibility to protect each of the States 
from invasion. Finally, Article II of the Bill of Rights guarantees 
that our right to "keep and bear arms", within the context of a well 
regulated militia, "shall not be infringed."
     While it is true that Article II of the main body of the document 
grants the President the power to make treaties (Section 2, clause 2), 
and it is also true that these treaties "shall be the supreme law of 
the land" (Article VI, Section 2), it is nowhere stated that this 
treatymaking power shall override the Bill of Rights or the main body 
of the Constitution. In fact, Article VI, Section 2 specifies only 
that the treatymaking power takes precedence over "...anything in the 
Constitution or laws of any STATE to the contrary notwithstanding."  
(Emphasis mine).
In fact, the very last clause of Section 10 in Article 1 allows the 
States to defend themselves if "...actually invaded, or in such 
imminent danger as will not admit of delay."
     Nothing in the Constitution supports the conclusion that the 
treatymaking power is arbitrary and unlimited and supersedes all 
individual rights guaranteed us by the text of the Constitution and 
the Bill of Rights.  One can readily infer, however, that all arms 
limitation treaties which infringe on our right to have our military 
forces keep and bear defensive weapons of our choosing are 
unconstitutional and therefore illegal. This would apply specifically 
to the ABM treaty as well as both versions of SALT.
     Because I do not believe that the framers of the Constitution 
would have subordinated their rights or those of their countrymen and 
descendants to any arbitrary power, foreign or domestic; and because 
the legal language supporting this conclusion is clear and precise, I 
submit that the ABM treaty is unconstitutional and illegal.

                                             J.H. Phillips
                                             Austin, Texas

PANOFSKY REPLIES:
   J.H. Phillips raises the interesting point whether ANY arms-control 
treaty violates the Constitution of the United States.  He agrees that 
Article VI, paragraph 2 of the Constitution states that treaties 
entered into by the United States preempt the constitution or laws of 
any state that might have contrary provisions.  Indeed, the United 
States Constitution makes the President the Commander in Chief and 
gives him responsibility to conduct foreign affairs and thereby 
provide for the national security.  Yet one must recognize that 
increased armaments and increased national security are by no means 
synonymous; in fact, post-World War II history has amply demonstrated 
the contrary.  The power of the President to negotiate treaties, even 
if they conflict with private rights involving arms or ownership of 
property, has been confirmed by numerous Supreme Court decisions.  
   Negotiated arms control is rightfully considered a component of the 
conduct of foreign affairs.  According to Arrticle VI of the 
Constitution, treaties are the supreme law of the land, subject only 
to other provisions of the Constitution.  They can be modified by 
mutual renegotiation or abrogated unilaterally under specific 
provisions that provide for prior notice and invoke the supreme 
national interest of one of the signatories.  
   The specific claim by Phillips is that arms-control treaties are in 
conflict with the provision of Article II of the Bill of Rights that 
"a well regulated militia, being necessary to the security of a free 
State, the right of the people to keep and bear Arms, shall not be 
infringed."  No court has ever held the Second Amendment to impose any 
limitation on the President's power to conduct foreign affairs, but 
the specific relation of arms-control treaties to Article II has, to 
the best of my knowledge, never been explicitly litigated.  In view of 
the foregoing it seems to me to be patently absurd to claim that the 
US President and Executive Branch cannot negotiate and sign a treaty 
that limits weapons by all signatories if the President believes this 
to be in the security interest of the United States, and I see nothing 
in the Constitution that would prevent such a treaty from entering 
into force once the Senate, by a two-thirds majority, has recommended 
its ratification to the President and the President has then executed 
the instruments of ratification.  The Constitution has done well in 
weathering the transition to the nuclear age.  If Phillips were 
correct in his interpretation it would be a sad day indeed.
                                     Wolfgang H.K. Panofsky
                                     Stanford University
                                     Stanford, California
                                     1/86


TREATIES AND THE CONSTITUTION
   The letter by J H Phillips and the response by Wolfgang K H 
Panofsky (April, page 90) raise interesting issues regarding the 
relationship between the Federal treaty-making power and the 
constitutional rights guaranteed by the Bill of Rights.  Although both 
Phillips and Panofsky deal solely with issues arising under the "right 
of the people to keep and bear arms" provision of the Second Amendment 
and with alleged infringements on this "right of the people" by arms 
control treaties, the issues are significantly broader in scope and 
deserve more careful analysis.
     According to Panofsky, the constitutional authority of the 
executive branch to conduct foreign affairs extends to the power of 
the President to negotiate arms control treaties, and such treaties 
when ratified by the Senate may abrogate any provision of the Bill of 
Rights.  Although Phillips disagrees, both Phillips and Panofsky limit 
their discussion to consideration of the Second Amendment in the Bill 
of Rights.  However, there is nothing in the underlying issue that 
should limit the argument to the Second Amendment; rather, the issue 
should be treated more broadly for a better understanding.
     For example, it is not difficult to imagine a treaty with the 
following provision:
      Due to the utmost importance of this 
    arms control treaty and the practical 
    reality that it cannot be successfully
    implemented without mutual trust and 
    harmonious relationships between the 
    signatory nations, any critical or 
    derogatory remarks, oral or written, 
    against a signatory shall constitute a 
    criminal offense against that signatory, 
    and such signatory may search and seize 
    any offending writings as well as punish 
    the person making said criticism, in such 
    manner as it deems appropriate, including 
    trial by judge without jury in the courts
    of the signatory as it deems appropriate.

     Of course such a treaty would clearly abrogate the provisions of 
the Bill of Rights contained in Amendments I (free speech and press), 
IV (unreasonable search and seizure), V (due process of law), VI 
(right to counsel) and VIII (trial by jury).  But in spite of the fact 
that the constitutionality of treaties that conflict with the Bill of 
Rights has never been litigated, some obvious conclusions as to how 
the US Supreme Court would treat this sort of treaty can be drawn.
     Moreover, that the precise issue has never been litigated does 
not justify Panofski's conclusion that it is "patently absurd" to 
claim that the treatymaking power cannot supersede the Bill of Rights.  
It is true that a treaty can override a state constitution or a state 
statute, but a Federal statute passed at a later date than a treaty 
prevails over the treaty, according to a line of US Supreme Court 
cases beginning with "Head Money Cases," 112 US 580, 598-590 (1884).  
It is also well established that even Federal statutes violative of 
the Bill of Rights can be declared null and void by the judiciary.  
Thus, since Federal statutes can abrogate treaties, statutes have at 
least as high a dignity as treaties, and since statutes violative of 
the Bill of Rights can be invalidated by our courts, so can treaties.
     Panofky's conclusion that arms control treaties can abrogate the 
Bill of Rights is thus, fortunately for America, clearly unwarranted.

                             David I. Caplan
                             New York, New York
                             Richard David Laumann
                             Berkeley Heights, New Jersey
                             5/86

Panofsky replies:  David I. Caplan and Richard David Laumann state 
that "according to Panofsky the Constitutional authority of the 
executive branch to conduct foreign affairs extends to the power of 
the President to negotiate arms control treaties and such treaties 
when ratified by the Senate **may abrogate any provision of the Bill 
of Rights** (italics mine).
  My response in the April issue said no such thing.  I stated 
"According to Article VI of the Constitution, treaties are the Supreme 
law of the land, subject only to other provisions of the 
Constitution."  In other words, I clearly stated that treaties do not 
preempt the Bill of Rights. Thus the letter by Caplan and Laumann is 
attacking a statement that I did not make.

                                     Wolfgang H.K. Panofsky
                                     Stanford University
                                     Stanford, California
                                     10/86

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