Critique	PHYSICS TODAY, APRIL 1986, p. 90 Panofsky's statement that "nothing in the US Constitution dilutes the responsibility of a President to comply with existing treaties in force" 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, Amendment 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, paragraph 2), it is nowhere stated that this treaty-making power shall override the Bill of Rights or the main body of the Constitution. In fact, Article VI, paragraph 2, specifies only that the treaty-making power takes precedence over "anything in the Constitution or Laws of any State to the contrary notwithstanding." Furthermore, the very last clause of Section 10 in Article I 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 treaty-making power is arbitrary, 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 that 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 to 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 8/85 Austin, Texas
Reply	90 PHYSICS TODAY / APRIL 1986 PANOFSKY REPLIES: Pieter J. van Heerden charges that I share the inability of other technological experts to foresee the state of technology one or two decades ahead, and he cites a number of developments that were unforeseen. Yet as I discussed in my replies to similar comments in the October issue (page 13), there is a large difference between the "technological breakthroughs" required for SDI to succeed and the type of developments cited by van Heerden and other critics. SDI is intended to lead to technical systems that are meant to be used against a live and able opponent, and that will therefore initiate a process of defense, offensive countermeasures, defensive counter-countermeasures and so on. It is not a matter of a single result of pitting man's ingenuity against nature, as were the examples cited by van Heerden. The key issue remains whether the process that SDI proposes to initiate involving a new series of mutual responses between the United States and the Soviet Union serves the interests of the national security of the United States and of world peace. As elaborated in my June article in PHYSICS TODAY, I judge that it does not. 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 Article 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 K. H. PANOFSKY Stanford University 1/86 Stanford, California
Rejoinder	Treaties and the Constitution PHYSICS TODAY / JANUARY 1987, p. 110 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 of 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 t such treaties when ratified by the ] Senate may abrogate any provision of c 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 for 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 VII (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 Panofsky's conclusion that it is "patently absurd" to claim that the treaty-making 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. Panofsky'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 5/86 Berkeley Heights, New Jersey
Reply to rejoinder	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 K. H. PANOFSKY Stanford University 10/86 Stanford, California
Calvin Coolidge's opinion	President Calvin Coolidge, November 2, 1923: I have here a quotation from a decision of the Supreme Court that is relative to ships bringing intoxicating liquors into port, and the inquiry is relative to a prospective treaty with Great Britain. Now, no definite information has been received about that. It is expected that Ambassador Harvey is to bring some proposal, or some answer to our proposal, when he returns. It has been so stated in the press. Just what the nature of the proposal might be, we don't know. There has been talk about a twelve-mile limit, and talk about an hour's journey. Which one of these, or a combination of them, will be suggested, is not certain. The question here is raised as to whether this treaty would be in conflict with the Constitution or the present Volstead Law. Well, that, of course, depends entirely upon the terms of the treaty. I think I stated the general principle at a prior conference, which is that the Constitution, and the treaties made thereunder shall be the supreme law of the land. That works out practically in this way, as I understand it: Congress, of course, has the right to make laws, which, when made in accordance with that Constitution, are the supreme law of the land. Our Congress has passed the prohibitory law, and that, at the present time, is supreme. But it has also the power, on the part of the treaty-making power, to make a treaty. Now, if the treaty is made subsequent to the passage of the law, the treaty should, insofar as there was any conflict between the two, supersede the law. Then it would be open to the Congress, as I understand it, at any later or subsequent time, to re-enact a law, or to make one that was different from the terms of the treaty, and then the newly-made Congressional Law would be the law of the land. That is, you have a sort of concurrent power between the treaty-making authorities and the law-making authorities, and the one that has acted last is the one that is binding. PRESS: Mr. President, some of the editorial writers seem to think that the proposed treaty would contravene the Constitution--not the Volstead Law, but the Constitution itself. Do you believe it within the power of the government to make a treaty that would contravene the Constitution itself? PRESIDENT: Of course not. The only power the government has to make a treaty comes from the Constitution, and there wouldn't be any question about it, for any treaty that might be made, that was contrary to the provisions of the Constitution, would be absolutely void. [Col. George B. Harvey, conservative editor of Harper's Weekly, was largely responsible for launching Woodrow Wilson into politics. He subsequently split with Wilson, supported the Republicans, helped bring about Harding's nomination in 1920, and served as Ambassador to Great Britain from April, 1921 to December, 1923.] Cf Missouri v. Holland, 252 US 416, 1920. (Quint & Ferrell 1964 56-57)
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