Prof. Martin has suggested using customary international law to make the U.S.
Constitution more understandable. The danger of this way of thinking lies in
supposing that customary international law is more determinate than it is in
fact. (And the temptation that this may create to defer to supposed
authorities about the content of customary international law.) The framers of
the U.S. Constitution would have said that international customs are good
evidence of the content of international law, but that they are not themselves
sources of law, and cannot change the nature of preexisting universal human
rights.
Tim Sellers
>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
