Prof. Sheridan writes: > This is the part that gets me, as I've seen it repeated without any cite to > real authority: > > [Francisco Martin writes:] "I recognize that the view that the Constitution is a federal treaty may be > provocative -- perhaps shockingly outrageous -- to some members of this > listserv. [TRUE] However, the view that the Constitution is a treaty > certainly is > not a novel idea. [MAYBE] This view was widely shared by the Founders. > [SEZ WHO?]
COMMENT: I already have provided citations to the writings of those Founders who referred to the Constitution as a treaty. I will provide them again: The Federalist No. 5 (Jay) at ¶ 3 et passim (1787); The Anti-Federalist No. 75 (Hampden) at ¶ 2 (1788); and the discussions of Madison, Hamilton, Grayson, and others regarding the ratification process in the Constitutional and Virginia Conventions. The idea that the Constitution was a treaty certainly continued into the 19th century as evidenced by the writings of Calhoun and other states' rights advocates. There are many other reasons found in the Constitution's text and the underlying political-legal theory of the Constitution supporting the idea of the Constitution as a treaty. However, it would be inappropriate to reproduce 58 pp. of my article here. I will be happy to send a copy to those who contact me off-list. Prof. Sheridan continues: > [Francisco Martin wrote:] In fact, > it appears that this view was non-controversial. [PARDON MY IGNORANCE] COMMENT: The view was non-controversial AMONG the Founders -- not present constitutional law professors. Prof. Sheridan continues: > [Francisco Martin wrote:]The Founders operated on the assumption that the Constitution was a treaty. > [OKAY, NO PROBLEM, BUT SHOW ME] I challenge anyone to show me where any of > the Founders thought that the Constitution was not a treaty. [GOT ME AGAIN]" > > One doesn't prove a point by trying to shift the burden to those who say > "Can that be right?" or "I think that's wrong." You prove the point by > pointing, in the legal context, to legal authority. If that is lacking for > any reason, you do the best you can to show how it is reasonable so to > conclude by pointing to supporting authority. > > The analogy is to the attempt to prove the existence of God by challenging > the doubter to prove there is no God. Failure of the latter doesn't prove > the former. If one wishes to prove the affirmative of a proposition, > prove it. Reasserting a questionable proposition continually adds no > weight to its existence, unless I'm missing something. COMMENT: I already had provided positive authority for my claims. My challenge to others to find any of the Founders who thought that the Constitution was not a treaty, was to merely point out that the Constitution's status as a treaty was non-controversial. John Eastman pointed to James Wilson's speeches, but Wilson was not claiming that the Constitution was not a treaty. Wilson was addressing nationhood. It appears to me that John was confusing (as well as Prof. Somin) nationhood with statehood -- a common mistake. John, was I correct? Prof. Sheridan continues: > Under the theory that the Constitution either is a treaty or was so > regarded by some or all of its framers, I've never seen anyone, outside > this list, so contend. Granted, that doesn't make it wrong, but it doesn't > make it right either. COMMENT: See above comments. Prof. Sheridan writes: > It's not clear to me, either, why anyone would WANT to have the > Constitution characterized as a treaty. What possible difference, he asked > respectfully, could it make? COMMENT: As I stated in a previous posting, recognizing the Constitution as a treaty solves some conundrums of constitutional construction, such as how the Constitution can be construed according to original public understanding and still have its meaning evolving and how to enumerate those unenumerated rights retained by the people under the 9th Amendment. There are other advantages that I did not mention. This approach provides better definitional limits on the powers of the President and Congress in their foreign affairs and domestic capacities, and on the federal judiciary’s lawmaking, while at the same time securing the fundamental rights of the American people. Second, conceptualizing the Constitution as treaty provides the advantage of integrating international law into the overall constitutional legal scheme in a more internally and externally consistent manner as well as resolving many of the internal contradictions that result from construing the Constitution only according to its text and structure. I can explain these further if anyone is interested. Francisco Forrest Martin
