Everything I wrote as "simple truths" comes straight out Chapter 2 of the Restatement Third of Foreign Relations Law, Paquete Habana, and Semtek. If you would like me elaborate we can continue off list. I do not think it necessary to revamp the Constitutional Law I course to treat the Constitution as a treaty, but since international law is part of our constitutional system, students should have at least a very basic notion of what it is.
Jonathan Miller Southwestern University School of Law > Prof. Young writes: > > > 1. I'm in the process (again) of trying to figure out how to pack a > decent smattering of the basics into a Con Law I course. Perhaps the key > to our difference is simply that I think there are so many other more > fundamental things to try to cover in an introductory survey. > > COMMENT: There is no question that there is a lot of constitutional law to > cover in an "introductory survey" that customarily covers judicial review, > federalism, and separation of powers cases. It is my belief (and I may be > the only one who thinks this) that if I am correct about the Constitution's > status as a federal treaty, constitutional law courses must be re- organized > conceptually. It is not so much that the content will change dramatically. > (After all, one of the claims that I make is that U.S. constitutional law > is regional international law.) Think of judicial review in terms of the > Supreme Court's authority as an regional international court's authority. > Think about federalism in its original sense as a foedal relationship. Such > a conceptual re-organization also globalizes the Constitution's > understanding -- not an untimely or transient project. > > Prof. Young continues: > > 2. You state as simple truths a number of points that are deeply > controversial. For instance, a number of scholars think that federal > courts have no power to apply CIL without authorization from the political > branches, not that it just automatically binds U.S. courts. It's true that > U.S. courts can't easily modify CIL (except that they can in the sense of > establishing practice, just like any other pattern of official acts), but > that's a separate question from whether it "binds" them. U.S. courts can > apply French law, too (if, say, a contract calls for it), and they can't > modify it, but they aren't "bound" by French law in any real sense. > Likewise, I'm not sure what you mean by "reverse-Erie" analysis -- a > concept that's muddy enough in its usual domestic context. I would think a > state court would be just as free to ignore lower federal court > interpretations of CIL as it is to ignore such interpretations of federal > statutes or federal common law. Whether a state court could ignore a U.S. > Supreme Court interpretation of CIL is a hard question that turns on > whether you think CIL is somehow incorporated into federal law or possibly > on more amorphous "one voice" concerns. Again, these are all complicated > questions. > > COMMENT: Even the Supreme Court's recent federalism cases are highly > controversial -- even within the Court given the repeated 5-4 decisions. > Constitutional law professors still require the reading of these cases. > > Prof. Young continues: > > Maybe your 1L's are a lot more together than mine are. But I'm still > smarting from my attempt to teach the 11th Amendment in Con Law I a few > years ago. > > COMMENT: You may have a very good point, but what I worry about is whether > Con law profs are receptive to re-tooling their approach to teaching Con > law. There appears to me to be such hostility towards international law > that is based more on misconceptions about some of the most basic > international legal precepts than on the merits or consequences of the > application of international law to U.S. domestic affairs. I wonder if any > of the old-timers on this listserv who embraced legal realism or critical > legal studies as young Turks can offer any advice to those who would want > to re-conceptualize constitutional law and its teaching. > > By the way, any suggestions as to what to call this new (yet originalist) > approach to constitutional law? Internationalism? Constitution as Federal > Treaty (CFT) Theory? My wife thinks it should be called the "Martian > Theory." > > Francisco Forrest Martin --------------------------------------------- This message was sent using Endymion MailMan. http://www.endymion.com/products/mailman/
