One can reconcile an originalist viewpoint with an evolving meaning of the
Constitution -- although it would be an originalism that Bork and other
originalists probably would not like. The Framers understood the
Constitution to be a treaty that must be construed in conformity with
customary
Prof. Levinson correctly points out the problem of secession with federalist forms of government when a state believes that either another state or the federal government itself has violated the constitution. However,the legal (and often practical)answer is either to explicitly provide for
I've just read Prof. Barnett's paper, and I urge others to read it. It
helped me put to rest some issues surrounding judicial review.
However, I have a few comments:
1. Prof. Barnett argues that Morris claimed that the new Constitution
could not be ratified by the state legislatures under the
Prof. Eastman wrote:
As per my earlier reference to James Wilson's speeches on the subject,
the difference between the source of authority for the Articles, and the
source of authority for the Constitution of 1787, is profound. The
Articles were adopted by the legislatures of the states,
Prof. Levinson writes;
Re the point about perpetual union: Where were North Carolina and Rhode
Island on April 30, 1789, the day that George Washington took the oath of
office. Were they (involuntary) members of the United States of America,
whose constitution they had not ratified? Or
Prof. Balkin writes:
Like law review articles, the decisions of foreign courts
are merely persuasive authorities, not controlling authorities, and people
can and do use them to persuade or give heft to their arguments. Whether
they actually do persuade or give heft is another matter.
Prof. Levinson wrote:
I begin with a discussion of the propriety of the Framers' blithe
willingness to ignore Article XIII of the Articles and its requirement of
unanimous consent for amendment (the Rhode Island veto). What do we/they
think of this demonstrated infidelity to constitutional
Prof. Scarberry writes:
When the issue to be decided by a US court involves international law, as
in
the maritime case from which Jack quotes, then decisions of foreign
nations'
courts may be analogous to decisions of sister circuits. The foreign
courts
are interpreting and attempting to
Prof. Maule asks:
A treaty between the United States and England? France? each of the
German principalities? Or a treaty among the states that became signatories
to it?
ANSWER: The Constitution is a treaty between the states (of the U.S.).
Prof Maule continues:
What treaty exists that binds
Prof. Franck writes: "As Louise Weinberg points out, "respect" but not "authority" makes all the difference. I would only add this: Jack Balkin's playful quotation from Chief Justice John Marshall's opinion in Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191 (1815), at 198, is neatly lifted and
Could you give us a few cites from the writings of the Founders recognizing judicial nullification of unconstitutional federal laws?
Francisco Forrest Martin
- Original Message -
From: Randy Barnett
To: [EMAIL PROTECTED]
Sent: 8/14/2003 12:44:54 PM
Subject: Re: Marshall
Prof. Young writes: The argument for customary international law as it is
most often made is that it has the same status as federal common law, and
it is similar in form as well as it comes from the courts rather than the
legislature. All of the general separation of powers, federalism, and
Prof. Maltz:
As an originalist, the answer to your question about what weight should be
given to international law should be obvious. The Founding Fathers
recognized the Constitution as a treaty, and as a treaty, the Constitution
must be construed in conformity with the U.S.' customary
Prof. Young wrote: I teach customary international law in Foreign Affairs
and the Constitution, and a little bit in Federal Courts. But I don't
teach it in Con Law I. I think it would be very difficult to do so when
the students don't know anything about federal common law, and even harder
in
Prof. Somin writes:
1. The Articles of Confederation expressly state that they form a
perpetual union and that each of the 13 states retains its
sovereignty, freedom, and independence, and every power, jurisdiction, and
right, which is not by this Confederation expressly delegated to the
Prof. Funk writes:
[Ginsburg in Grutter] did not recognize any obligation. She
expressly stated that the
convention was evidence of international understanding. To imply that
she suggested any obligation arising from the Convention is not just
misleading; it is dishonest.
Comment: This is
Prof. Scarberry writes:
When the issue to be decided by a US court involves international law, as
in
the maritime case from which Jack quotes, then decisions of foreign
nations'
courts may be analogous to decisions of sister circuits. The foreign
courts
are interpreting and attempting to
goodthing," and going on to say, "Liberalism in America is almost entirelyreactionary," citing the last presidential election where, he says, "theDemocratic rhetoric was all about 'stopping' Big oil, Big tobacco, Big thisand Big that."Robert Sheridan[EMAIL PROTECTED]S
Prof. Franck writes: "Jay never refers in Federalist no. 4 to the "Treaty of Union" establishing the United Kingdom, which by the way is known and has always been known as the Act of Union--no small difference."
Comment: Oops, I meant to say (as I did in my previous post) Federalist No. 5. The
Prof. Franck writes: "I know Prof. Martin thinks the Constitution has some "status as a treaty." I do not. Federalist nos. 5 and 75 provide no evidence to the contrary."
Comment: John Jay indirectly referred to the Constitution as a treaty in Federalist No. 4 when he favorably compared it to
If future Supreme Court decisions involving homosexual rights will be
based (partly?) on what the Eur. Ct. H.R. already has held in similar cases
(as in Lawrence), allow me to briefly point out what the Eur. Ct. H.R.
already has done in the field.
A.D.T. v. United Kingdom: private, consensual
Prof. Graber writes:"Marbury is based on the conceit that justices create judicial review, a conceit that no serious student of ANY OTHER LEGAL REGIME considers valid."
I have been enjoying the discussion of judicial review/supremacy. However, my take on this issue is quite different. The
Prof. Scarberry writes:
Of course, to the extent that the provisions of the Bill of Rights
explicitly protect privacy interests against state governments, they do so
only through the 14th Amendment.
Comment: Don't forget that the 9th Amendment also recogizes the right to
privacy against
Title: Message
Prof. Wildenthal writes: "This language does, however, appear to me to wipe out the U.S. military's sodomy prohibition.Or is anyone prepared to argue that servicemembers already sacrificing so much for their country should be denied the right, at least while off-duty in private,
Can someone tell me how the Republic of Texas became a state? Before the
Act of Congress, did Texans vote in a plebiscite to become part of the
U.S., or was there a treaty between the U.S. and Texas?
Thanks!
Francisco Forrest Martin
President
Rights International, The Center for International
Prof. Maule writes:
For the police officer to KNOW that the information is false, the police
officer needs to KNOW that there is no meth in the basement. If the
police officer had looked into the basement, saw no meth, and then
alleged there was meth, that's a lie. If the police officer sees
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