Prof. Somin writes: > 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?
COMMENT: The 13 states were not independent "nations." They were independent "states." The American people constituted the nation. The Articles of Confederation states: "Each state retains its sovereignty, freedom, and independence, . . ." The Declaration of Independence says "these United Colonies are, and of Right ought to be Free and Independent States." The Declaration does not say that these Colonies is an independent state. See also Gibbons v. Ogden 1 U.S. (9 Wheat.) 187 (1824) (states sovereign and "completely independent" under Articles). The retention of sovereignty by the states under the Constitution was consistent with the law of nations. As Vattel put it: "several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements." Francisco Forrest Martin
