I'm late to this interesting discussion, and have to applaud the dogged and careful advocacy of this position, even if I don't agree with its particulars. Let me add a small point concerning its potential implications as a solution to tensions in originalism; apologies if it's been made.
The Constitution is a treaty, we're told, and thus has to be interpreted in light of customary international law. Put aside whether the Constitution *was* a treaty, and whether customary international law is suitably determinate or not (and whether bringing it in via U.S. accession to multilateral treaties improves its determinacy, or merely suggests a legislative shortcut for amending the Constitution). Even so, custom isn't the only source of interpretation under international law, and the relevant context is deemed to include other agreements among the parties, and any special meanings they attach to the relevant terms, etc. One of the points repeatedly made in defense of the Constitution-as-treaty view has been that this was an unorthodox treaty, but a treaty nonetheless; maybe that distinctive character has to be respected in how it's interpreted. More important, tribunals applying custom as an interpretive device have nonetheless tended to be wary of upsetting the parties' understanding at the time they made the treaty, and so stressed that the terms or concepts in question were inherently evolutionary in character (see, e.g., the Namibia and Aegaen Sea Continental Shelf cases). The end result, I'm afraid, looks like purely domestic "originalism" debates about whether the nature of a particular clause (e.g., cruel and unusual) suggests that the Framers expected it would evolve over time. Best regards, Ed Swaine P.S. To the extent that this is more about international law, I am happy to continue it off-list. We can also work on punching up the "just for laughs" quotient, which has been steadily dwindling. -----Original Message----- From: Francisco Martin [mailto:[EMAIL PROTECTED] Sent: Thursday, August 07, 2003 3:25 PM To: [EMAIL PROTECTED] Subject: Re: Just for laughs 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 a non-signatory? How could England be bound by the US Constitution? COMMENT: England is not bound by the U.S. Constitution as a matter of treaty law. Prof. Maule continues: > Conversely, what non-signatory can claim rights under a treaty? ANSWER: A non-signatory state cannot claim any rights under a treaty, according to treaty law. Prof. Maule continues: >Can an English citizen claim rights under the US Constitution? COMMENT: Yes. For example, aliens have due process rights. Prof. Maule continues: > On the other hand, if the norms of treaty interpretation (rather than norms of code interpretation or judicial opinion interpretation) are the best norms to apply to interpretation of the Constitution (assuming that there is no separate set of constitutional interpretation), that's a different notion. Or, it could be that norms of treaty interpretation should influence development of norms of constitutional interpretation? COMMENT: What I am arguing is that the Constitution MUST be construed in conformity with the U.S.' customary international legal obligations, evidence of which is found in (in part) the U.S.' acceptance of widely adopted multilateral treaties (e.g., ICCPR) and -- sometimes (depending on a number of factors) -- their construction in light of other treaties to which the U.S. is not a party (e.g., ECHR). What is particularly helpful about recognizing the Constitution as a treaty that must be construed in conformity with the U.S.' customary international legal obligations is that it solves some of the conundrums of constitutional construction, such as how one can be an originalist and still recognize that the Constitution's meaning is evolving and how to enumerate those unenumerated rights retained by the people in the 9th Amendment,. Francisco Forrest Martin
