I don't want go over ground that has already been rehashed on this list several times, but I also don't see how the Constitution can be a treaty given that the 13 original states were not independent nations at the time the Constitution was ratified. They were already part of the United States under the Articles of Confederation. Even before that, one could argue that the US already existed as a unified nation because the Declaration of Independence established a new nation embracing all 13 colonies. After all, it is the AMERICAN Declaration of Independence, not the Virginia or New York declaration. Thus, as far as I can tell, the original 13 states were never independent nations. They went directly from being part of the British Empire to being part of the US, even if the original union was much looser than what we have today. But if the colonies/states were not independent nations, then any agreement between them (such as the Constitution) cannot be an international treaty. Or can it?
On Thu, 7 Aug 2003, Francisco Martin wrote: > 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 >
