Francisco Martin writes:
The Constitution is a treaty between the states (of the U.S.).
If true, why does the preamble begin, "We, the People." Your notion that the founders
were all unanimous in their view that the Constitution was a treaty confounds me.
Your claim that it is ratified by the states may have been accepted later by John C.
Calhoun, but it was certainly not a commonly held view of the founder in 1787. James
Wilson's numerous speeches in the Pennsylvania Ratifying Convention are particularly
apt here. This was a nation grounded on the idea that the people were sovereign, and
had delegated different powers to two distinct governments, acting both in their
national capacity and, separately, in their state capacities. The resort to the
national people, rather than the states, was done not because the founders viewed the
Constitution as a treaty, but because the unanimity requirement in the Articles
precluded resort merely to the states, which had adopted the Articles of
Confederation. It took resort to the higher authority of the people, directly, to
overcome that requirement of the existing constitution. But to draw from this that
somehow the charter by which the people decided to govern themselves was somehow a
treaty between separate nations simply cannot be sustained.
John Eastman
Chapman University School of Law
