Hi John!
You wrote:
> 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"?
COMMENT: The Constitution's preamble confirms what international law
said about sovereignty: it resides in the people. See Burlamaqui's (who
was often cited by the Founders)The Principles of Natural Law, vol. II, pt.
II, ch. VI, � VI (1748) ("sovereignty resides originally in the people")
and Vitoria's On the Law of War (1557). Furthermore, the preamble states
"We the People OF THE UNITED STATES." The Constitution unified states and
consolidated the American people, like the Treaty of Union did by uniting
Scotland and England and consolidating the Scots and English into one
British nation. That is why Jay said that the Constitution was like the
Treaty of Union.
You continue: "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.
COMMENT: Ratification of a treaty by state conventions (as in the case of
the Constitution) does not disqualify the treaty as being a treaty.
Indeed, this treaty ratification process is common. The problem with
Calhoun's argument that the Constitution was a treaty was that he failed to
understand that the Constitution was a FEDERAL treaty, from which no state
can secede. As I have mentioned before, the word "federal" comes from the
Latin "foedus," which was a particular kind of treaty from which its
states-parties could not secede.
You continue: "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."
COMMENT: I agree with Wilson.
You continue: "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. "
COMMENT: This is not quite correct. As Madison correctly argued, some of
the states under the Articles had violated the Articles. However, Madison
further stated without giving any authority that the law of treaties
allowed a state-party to withdraw from the treaty when its treaty partner
had violated the treaty. Actually, Madison had it wrong on this last
point. Eighteenth century international law was divided as to whether
breach of a BILATERAL treaty allowed the other state party to dissolve the
treaty. Grotius and Vattel said you could. Wolff said you could not.
However, even Vattel recognized that breach of a MULTILATERAL treaty did
not allow dissolution because there were other parties that had not
violated the treaty. The Articles was such a multilateral treaty;
therefore, the Articles were still binding. The unanimity rule for
dissolving the Articles was not legally required because some states had
violated the Articles. Nevertheless, the Founders still recognized that
the law of treaties still governed the establishment of the Constitution;
hence they used the 9-state ratification rule under the Articles for making
a new treaty -- that is, the Constitution.
You continue: " It took resort to the higher authority of the people,
directly, to overcome that requirement of the existing constitution."
COMMENT: I do not think that "resort to the higher authority of the
people" was necessarily required. However, it was a brilliant move because
it cut off any question as to the legal validity of the Constitution's
establishment. And, by the way, the Framers did not pull this idea of
popular sovereignty out of the ethereal mists of Lockean political theory.
As noted above, sovereignty resided in the people according to
international law.
You continue: "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."
COMMENT: I am not arguing that the Constitution is a "treaty between
separate nations." "Nations" are "peoples." Nations are not states. The
Constitution was a treaty -- to quote the Constitution -- "between the
States." See Art. VII. The Constitution established "nation-stateS."
(That is why "United States" is often used in the plural. See, e.g, 14th
Amendment.).
Hope that this has been helpful.
Warmly yours,
Forrest
Francisco Forrest Martin
