Guest Opinion: Constitutional ‘lesson’ could have prevented special session

A little constitutional history and civic education can go a long way. They can save time and money, and in this instance in Idaho, could have spared people the angst and expense that accompany a special legislative session, such as the one scheduled for Monday to pass a bill to approve the critical mechanisms of the child support treaty negotiated at The Hague.

The nine members of the Idaho House of Representatives’ Judiciary, Rules and Administration Committee who voted to kill the bill necessary to implement the treaty’s provisions for collecting child support payments might have voted differently if they had been presented with a constitutional history lesson. Their votes provide a teaching moment.

One of the principal driving forces behind the Constitutional Convention in 1787, James Madison declared, was the practice of states interfering in the conduct of American foreign policy, specifically through their practice of scuttling treaties. Madison listed state interference with treaties as one of the “principal vices of the political system” created by the Articles of Confederation, which exalted state power at the expense of the national government and, ultimately, persuaded voters to replace it with the Constitution.

The stakes for the young republic were high. Repeated violations of treaty obligations and expectations by obstructive states, bent on pursuing their own interests and ideological inclinations, had undermined the trustworthiness and reputation of the nation abroad. As a result, foreign countries began closing their ports to American goods, and damped their enthusiasm for new international arrangements and undertakings with the United States.

The obstructionist efforts strengthened the resolve of the Framers of the Constitution to incorporate The Supremacy Clause in Article VI, not merely for its benefits in domestic matters, but in the foreign relations realm as well. As a consequence, the text provides that treaties made under the authority of the United States shall be the supreme law of the land. The Supremacy Clause, then, owes its origins to the recalcitrance of states, which sought to interfere with the formulation and management of the nation’s foreign policy.

In 1793, in Ware v. Hylton, one of the U.S. Supreme Court’s earliest decisions of great significance, the court, in an opinion by Justice Samuel Chase, delivered an instructive seminar on the allocation of power and federalism, and established the fundamental principle that a state act may not violate a national treaty. A treaty, he ruled, could not be the supreme law if any state act could stand in its way. A treaty and the Constitution, which was, he wrote, the “creator” of the states, “prostrated” state laws that conflicted with them. The decision’s imperturbable principle of the supremacy of national treaties reaffirmed exclusive federal control of the nation’s foreign affairs and relegated memories of state interference in treaties to a receding past.

Surely the Idaho Legislature will rectify the grave error inflicted by the nine votes that threaten the collection of child support. With a wiser vote, one better informed by a knowledge of constitutional history, and some learning gathered from the teachings of Idaho’s distinguished attorney general, Lawrence Wasden, the potential harm can be avoided. But there is a deeper lesson in this disappointing episode. The case for a greater state commitment to civics education rarely has been stronger. And with it, a greater commitment to education as a whole. This special session will cost taxpayers, at minimum, $36,000 — roughly the salary of a young teacher.

David Adler is the president of The Sun Valley Institute, established to promote civic education and civil dialogue. He has lectured nationally and internationally on the Constitution, the Bill of Rights and the presidency.