Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
***************************
At 02:30 PM 8/1/2003 -0800, you wrote:
I have not followed the earlier strand of this discussion, but your
reading of the Supremacy Clause is hardly dictated by its language --
though it has support in obiter dicta in Reid v. Covert. The clause may
easily be read as placing treaties on the same level as the Constitution
so long as they are enacted using the process that the Constitution
indicates. While hardly the traditional U.S. approach, it is not clear
from the text that the U.S. cannot ratify a treaty that gives an
international human rights treaty a status equal to the Constitution and
that establishes an international body as the authoritative interpreter of
the international instrument. Given that public international law was
often viewed in natural law terms in the 18th century, it might even be
possible to argue that the Framers intended the U.S. to be able to enter
into international agreements that would not be limited by the
Constitution. -- It would be an interesting area for research.
Jonathan Miller
Professor of Law
Southwestern University School of Law
> 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. Nor does Ware v. Hylton bear on the issue he raises; it had to
> do with the supremacy of the Treaty of Paris (1783) over a law of
Virginia.
>
> Scalia is quite right to disdain rulings of the European Court of Human
> Rights as relevant to American constitutional questions. Article VI
> identifies three sources of "supreme law": the Constitution, acts of
> Congress, and treaties. No treaty to which the U.S. is a signatory
obliges
> our judges, state or federal, to pay the least bit of attention to the
> rulings of the ECHR (thank goodness). Nor does "customary international
> law" have any bearing on the laws by which Americans govern themselves.
>
> Scalia's "federalism"--I have in mind those cases where the five
> "conservative" justices band together to defend "sovereign immunity" or
> tendentious readings of the Tenth Amendment or limits on the commerce
> power--is lousy originalism precisely because it forgets that the
> Constitution is not a treaty among the states, and because it rests on an
> ahistorical view of the proper reach of judicial review.
>
> Matt
> ***************************
> Matthew J. Franck
> Professor and Chairman
> Department of Political Science
> Radford University
> P.O. Box 6945
> Radford, VA 24142-6945
> phone 540-831-5854
> fax 540-831-6075
> e-mail [EMAIL PROTECTED]
> ***************************
> At 01:23 PM 8/1/2003 -0400, you wrote:
> >Prof. Franck writes in relevant part:
> >
> >Scalia is a good originalist in Lawrence, and a lousy one when it comes
to
> >"federalism" and other Loch Ness monsters of the Constitution.
> >
> >Comment: It is not so clear to me that Scalia is a "good originalist"
in
> >Lawrence. He fails to recognize that the Eur.Ct.H.R. cases cited in the
> >Court's opinion reflect customary international legal obligations with
> >which the 14th Amendment's due process clause must be construed because
of
> >the Constitution's status as a treaty --something which both Federalist
> >and Anti-Federalist recognized. See Federalist No. 5; Anti-Federalist
No.
> >75. Customary international law is evolving -- also something that the
> >Founding Fathers recognized. See Ware v. Hylton (1796). Good originalism
> >recognize that the Constitution's provisions (viz., due process clause)
> >must be construed in conformity with this evolving customary
international
> >law. Scalia misconstrues the constitutiona! l relevance of the
> >Eur.Ct.H.R. cases by indicating that they are merely foreign law -- not
> >evidence of the U.S.' customary international legal obligations. This
is
> >particularly contrary to originalism because the Founders specifically
saw
> >European customary international law as binding on the U.S.
> >
> >By the way, how is Scalia's federalism lousy?
> >
> >Francisco Forrest Martin
>
>
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