The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution

The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution

by Francisco Forrest Martin


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Product Details

ISBN-13: 9781107407848
Publisher: Cambridge University Press
Publication date: 10/04/2012
Edition description: Reprint
Pages: 230
Product dimensions: 5.98(w) x 9.02(h) x 0.47(d)

About the Author

Francisco Forrest Martin is the founder and president of Rights International, The Center for International Human Rights Law, Inc. He is also the former Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan College of Law. Mr Martin is the author of seven books and numerous articles on U.S. constitutional and international law, including International Human Rights and Humanitarian Law (Cambridge University Press 2006). He has litigated cases before U.S. and international courts, including the European Court of Human Rights, Inter-American Commission and Court of Human Rights, and the African Commission on Human and Peoples' Rights. He was the recipient of the American Civil Liberties Union's Anneta Dieckmann Award.

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The constitution as treaty
Cambridge University Press
978-0-521-88193-7 - The Constitution as Treaty - The International Legal Constructionalist Approach to the U.S. Constitution - by Francisco Forrest Martin


This book explores further ramifications of International Legal Constructionism (ILC), a theory of U.S. constitutional interpretation first presented in the 2004 issue of the Hastings Constitutional Law Quarterly.1 This interpretive theory argues that the U.S. Constitution is a treaty that must be construed in conformity with the United States’ international legal obligations. One of ILC’s claims is that the U.S. federal court system constitutes an international tribunal system. This book will elaborate on this claim and provide an international legal construction of different aspects of federal court jurisdiction, viz., judicial review authority, the authority to use international law, and the appropriate manner of using such law.

   A striking feature about the present international legal order is the great and growing number of international tribunals. Since the beginning of the twentieth century, numerous international tribunals of varying types have been created.2 Although there were very few international tribunals before the twentieth century,3 two eighteenth-century international tribunalsystems deserve special attention: the federal court systems respectively established under the Articles of Confederation4 and the U.S. Constitution. Although the case law and academic literature providing an international legal construction of U.S. federal court jurisdiction is scarce,5 it is not unknown. Indeed, “[f]rom the earliest days of the Republic, American courts and commentators have relied on principles of…international law to limit judicial jurisdiction.”6

   This book will explore the implications of providing an international legal construction to federal judicial power. However, before undertaking this exploration, let us first turn to the constitutional basis of International Legal Constructionism.

What Is Our Constitution?

What is our Constitution? What kind of legal instrument is it? It is not really that helpful to say that it is – well – a “constitution” because there a many different types of constitutions – state constitutions, corporate constitutions, intergovernmental constitutions, high school chess club constitutions. It certainly is not merely a statute. It could be a contract. Indeed, most folks wax theoretically and say that it is a social compact.7 That’s fair enough, but lawyers and judges tend to look for something a little bit less theoretical, and few politicians probably are very familiar with social compact theory. Yet, it’s odd, but few judges, lawyers, or political leaders ever address what kind of legal instrument the Constitution represents. It certainly must be the case that determining the kind of legal instrument should be important to how one goes about interpreting it.

   Instead, most constitutional interpretation does not begin with this fundamental threshold question but starts with examining only the text and moving outside it when the text is vague requiring the use of extraconstitutional authorities and most often making shortcuts by appealing to judicial precedents. However, the Constitution does not say what kind of extraconstitutional authorities are appropriate for construing it, and precedential shortcuts often beg the question by failing to address why earlier precedents using such extraconstitutional authorities are warranted. Consequently, one often ends up foundering on a Schylla of strict constructionism – desperately holding onto the rocks of a rigid textualism. Or, one descends into a Charibdis of judicial activism – swirled and sucked into the unfathomable depths of arbitrary authorities. One fails to safely navigate a constitutional course that is both loyal to the letter of the law, and responsive to new social and political realities such as globalization. Like the counsel given by Circe, it perhaps is best to navigate closer to the Schylla of strict constructionism because of the lesser danger that it poses. Constitutional text is limited, extraconstitutional authorities are not, and limited government generally is more protective of individual liberties. However, Circe was no sailor, and we should not be bewitched by such advice. Like a well-helmed ship that sometimes can slingshot itself around a whirlpool and gain greater speed, a loose construction of the Constitution sometimes can increase individual liberty.

   But both monsters largely are creations of our own. Both are created by a failure to recognize what kind of legal vessel the Constitution is. Failing to understand what the Constitution is encourages constitutional expositors to become modern-day buccaneers, creating mayhem as they ply the high seas of international relations accountable to none. Like another vessel bearing the same name, the Constitution’s mission should be to exterminate piracy – not to be pressed into its service.

Our Constitution Is a Treaty

To properly understand what the Constitution is, it is necessary to see what the Founders thought it was. For them, the Constitution was a treaty between the thirteen states. Mind you, it was a peculiar kind of treaty. It was a sort of foedus – a suzerainty-type treaty that created a central government that controlled the international affairs of its states-parties. Indeed, our word “federal” comes from the Latin word “foedus,” and it is this meaning of “federal” that the Framers had in mind when they used the word.8 The Framers drafted the Constitution in order to replace the Articles of Confederation and to create a stronger central government that could ensure that the individual states did not violate the United States’ international legal obligations – a repeated problem faced by the U.S. government under the Articles of Confederation.9

   When one looks at the ratification debates during the Constitutional Convention, it is clear that the Framers recognized that the law of nations governing treaties also governed the replacement of the Articles with the Constitution.10 This was noncontroversial. Indeed, in settling on a nine-state ratification rule for the Constitution, the Framers adopted the same numerical rule for ratifying treaties under the Articles.11 This only made sense because the Constitution was a treaty.

   The use of treaties for uniting states and consolidating peoples was not unusual at the time of the Constitution’s drafting. John Jay, Rufus King, and others used the example of the Treaty of Union (1707) that united the states of England and Scotland, and consolidated the British people, as an anology to the Constitution uniting the thirteen states and consolidating the American people.12 As one Anti-Federalist put it, “Who is it that does not know, that by treaties in Europe the succession and constitution of many sovereign states, ha[ve] been regulated?”13 This practice of using a treaty for creating a constitution has continued.14

   Of course, one could say that the “states” of the United States are different from foreign “states” – such as France or Japan. However, the Framers made no such distinction. They understood the states of the United States to have the same legal status as foreign states. Indeed, James Patterson (the author of the New Jersey Plan) considered using another term – namely, “districts” – but he subsequently rejected this term.15 The First Congress also shared this conception of the states. For example, the First Congress recognized that those states (viz., North Carolina and Rhode Island) that had not ratified the Constitution were to be considered foreign states.16 The Founders – being very familiar with the law of nations – knew the international legal significance of using the term “state,” and they retained the use of this term in the Constitution.17

   Most importantly, the Constitution’s text discloses its status as a treaty. What is a treaty? The Vienna Convention on the Law of Treaties provides the customary definition of a treaty: a treaty is “an international agreement concluded between States in written form and governed by international law.”18 The first requirement is met in that the Constitution is written. The second requirement also is fulfilled in that Article Ⅶ of the Constitution says that “the Ratification of the Conventions of nine states, shall be sufficient for the Establishment of this Constitution between the states so ratifying the same.”19 Note here the use of the word “ratification,” which is how treaties come into force, but most importantly, also note that the Constitution is established “between the states” – that is, it is an agreement.

   The third requirement for a treaty is that it must be governed by international law. The best way to ensure that a treaty is governed by international law is to incorporate international legal norms into the very treaty itself,20 and the Constitution does that. For example, the Supremacy Clause ensures that treaties are part of the supreme law of the land,21 including old treaties entered into by the Articles Congress because international law required the recognition of old treaty obligations by new governments.22 Also, Article Ⅰ ensures that Congress can clarify international legal norms.23 Article Ⅳ ensures the observance of the international legal rules of the territorial inviolability of states24 and state coequality,25 respectively, by prohibiting annexation of state territory by other states26 and guaranteeing full faith and credit between states.27 Article Ⅰ also guaranteed that states retain their international legal personality and sovereignty by being able to enter into agreements with each other and with foreign nations (of course, subject to congressional approval per the “foederal” approach).28 Even when the Constitution did not explicitly incorporate an international legal rule, the Framers recognized that the law of nations governed the Constitution’s construction, as when there was no objection to Edmund Randolph’s argument during the Virginia Constitutional Convention that Congress could not violate the law of nations governing navigational rights on the Mississippi – even if there was no explicit prohibition in the Constitution.29

   It just was common sense to the Founders that a constitution governing a nation must itself be governed by the law of nations. James Madison,30 John Jay,31 Alexander Hamilton,32 Edmund Randolph,33 William Davie,34 and others all recognized that the Constitution could not be interpreted to violate the United States’ international legal obligations because of the Constitution’s status as a treaty.

   Therefore, even though most national constitutions are not treaties, both the text and original public understanding of the Constitution discloses the Constitution’s legal status as a treaty.

Constitutional Canards

However, there are a number of old canards rejecting the idea that the Constitution is a treaty that have become embedded in our constitutional culture. For example, some folks argue that the Constitution is not a treaty because it was “ordain[ed] and establish[ed]” by the people, as its Preamble says.35 This conclusion is incorrect. The Constitution was ratified by individual state conventions – not by the American people as a whole in a single convention. Indeed, the fact that the Constitution says that it is ordained and established by the people reconfirms its status as a treaty because the law of nations itself recognized in the eighteenth century that the original locus of sovereignty resided in the people – not states.36

   Another myth is that James Madison – the “father of the Constitution” – stated that the Constitution was not a treaty. Actually, what Madison stated a couple of times is that our constitutional system was not a “mere league or treaty.”37 Madison was using the term “treaty” in its somewhat arcane sense of “league.” And, he was right. Our constitutional system was not merely a league, which lacks a central government. He did not mean to say that the Constitution was not a treaty in sense of being a legal instrument. Indeed, during the Constitutional Convention, Madison recognized that the international law governing treaties also governed the establishment of the Constitution.

   The claim that the Constitution was not a treaty received quite a bit of exposure in the early nineteenth century during the states’ rights and federal law nullification controversy. The nationalists – such as John Marshall, Daniel Webster, and Joseph Story – argued that the Constitution was not a treaty on a number of grounds, all false. Webster and Story argued that the Constitution was not a treaty because a treaty allowed its individual states-parties unilaterally to construe the treaty that could lead to another state-party claiming a treaty violation and the latter’s lawful withdrawal from the treaty.38 However, this was not true. Treaties – such as the Articles of Confederation, the Jay Treaty (1794), and the Treaty of Ghent (1814) – had provisions, respectively, providing for the establishment of international courts and/or boards of commissioners to resolve treaty disputes between states-parties.39 Indeed, under the Articles of Confederation, states repeatedly used federal courts to adjudicate disputes.40 The Framers of the Constitution also established a similar international court for resolving interstate disputes – namely, the U.S. Supreme Court. Subsequently, the Supreme Court has adjudicated disputes between states of the Union.41

© Cambridge University Press

Table of Contents

Introduction; Part I. United States Courts as International Courts: 1. Final judicial review authority of federal and other international courts; 2. The fallacy of federal judicial activism in light of international law's non liquet prohibition principle; Part II. International Law: 3. The positive law of nations and its interpretive principles; 4. The natural law of nations; Part III. United States Law as International Law: 5. Article III, international legal interpretation; 6. Extra-Article III, international legal interpretation; 7. The General Liberal Construction Rule: extending Lynham to other Article III and Extra-Article III international law; Conclusion.

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