Treaties do not trump the Constitution. If the power is not there, no treaty can create it. If there are certain protected rights, no treaty can abrogate them. No international law can trump the sovereignty of the US nor the Supremacy of the Constitution itself.
Article VI , paragraph 2, the supremacy clause, provides "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. . . ."
Actually, Article VI, Clause 2 is slightly longer, containing language to resolve this difference of opinion.
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.
The Supremacy Clause simply states the truism that the power of the federal government trumps the state governments. Joseph Story summarized the concept in his
Commentaries on the Constitution: "The propriety of this clause would seem to result from the very nature of the constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme."
Treaties are included in the Supremacy Clause because (per Story) "they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws."
The concept that treaties can violate the Constitution is inaccurate. Both Joseph Story and St. George Tucker (in
Blackstone's Commentaries) noted that the Supremacy Clause is only effective for constitutional laws and treaties. Story wrote "It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution" and Tucker wrote "a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void."
The Supreme Court has stated that treaties that violate the Constitution may be held void, although no specific treaty has apparently ever been judged unconstitutional.
“The treaty is ... a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.” Doe v. Braden, 57 U.S. (16 How.) 635, 656 (1853).
“It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” The Cherokee Tobacco, 78 U.S. (11 Wall.), 616, 620 (1871).
Thus, the Constitution establishes a hierarchy of authority:
- the Constitution of the United States
--- laws and treaties of the United States
----- the constitutions and laws of the various states