What Is the Purpose of Section Six of the Proposed Amendment?

Answer from Michael Farris, J.D., LL.M.:

This section demands an understanding of both the text of the U.S. Constitution and the operation of international law for domestic and international purposes.

Proponents of the UN Convention on the Rights of the Child have asserted,  “Article VI already declares the Constitution to be the supreme law of the land, so no international law can supersede it.”

This is true for domestic law purposes. But there is far more to our law on parents and children than the U.S. Constitution, even if the Parental Rights Amendment is adopted.

Article VI of our Constitution provides in pertinent part:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This section clearly proclaims that treaties are superior to all state laws and state constitutions in the event that the provisions of state law are in conflict with the rules contained in the treaty.

It is especially important to note the supremacy of a treaty over all forms of state law when the subject is the rights of the child. Virtually all law governing the parent-child relationship is state law, not federal law. Thus, the Constitution itself contains the language to prove that international treaties, like the Convention on the Rights of the Child, would trump the vast majority of American law on the subject of children.

If the Parental Rights Amendment were adopted without Section 6, then the rule would be that treaties on parents and children could be adopted so long as they did not “conflict” with the Constitution. However, with Section 6 we prohibit not only the adoption of treaties that conflict with the rights guaranteed by the amendment, but the use of any form of international law to “modify, interpret, or apply to the rights guaranteed by this article.”

This prohibits treaties on the entire subject matter. We would stop the scenario where the courts could say, “This treaty provision does not conflict with our Constitution, it merely speaks to the subject in a way we find consistent with our Constitution. This state law which is in conflict with the treaty is obviously void because of the clear language of Article VI.” Section 6 eliminates the possibility that international law can be used in this fashion domestically.

Moreover, we have to seriously consider the prospect that the American government could be taken to international court for violation of the UN Convention on the Rights of the Child. Even if we do not ratify the treaty, it is a virtual certainty that international courts will hold that the CRC has become “customary international law” and, by definition, is binding on all nations in the world, including those who do not even consent to the treaty.  One federal district judge has already ruled in two separate cases that the CRC is binding on the United States under the doctrine of customary international law (Beharry v. Reno, 183 F.Supp.2d 584 (E.D. N.Y. 2002) and Nicholson v. Williams, 203 F.Supp.2d 153 (E.D.N.Y. 2002)).

In international courts, the standard rule of law is that a state’s duties stemming from international law cannot be derogated under the theory that the national law—even the national constitution—prohibits compliance with those obligations. However, there is an exception to this rule in international law. Article 46 of the Vienna Convention on the Law of Treaties states that the nation’s constitution can override the obligations arising out of international law only when a constitutional provision relates to the capacity to enter into a treaty, and the officials of a nation enter into a treaty in violation of such a provision.

Section 6 as proposed would prohibit the United States from adopting any treaty on this subject matter.  Thus, even if we had unfaithful national leaders who adopted a contrary treaty, and even if we found ourselves in international court on the matter, the United States would have its defense clearly available.  Such a treaty adopted contrary to the Constitution would be unenforceable even under international law.