Prof. Eastman wrote: > As per my earlier reference to James Wilson's speeches on the subject, > the difference between the source of authority for the Articles, and the > source of authority for the Constitution of 1787, is profound. The > Articles were adopted by the legislatures of the states, acting as the > delegated agents of the people of the states. (Francisco Martin's > "treaty" claims are much more apropos here). The Constitution, on the > other hand, was adopted by a national people, as a charter for how they > were going to govern themselves. The ratifications were made by the > people in their states (where else would they have been made, as one > founder noted), but the very act of ratification made them part of a > national people, engaged in constitution-making rather than > treaty-making.
COMMENT: The phrase "We the People of the United States . . . do ordain and establish this Constitution" was not in force until 9 state conventions ratified the Constitution. And, let's be clear. Strictly speaking, the people of the individual states did not ratify the Constitution. Their delegates in state conventions did. Treaties can be ratified not only by legislatures (as in the Articles), but also by conventions (as in the Constitution and ) and even plebiscite (for example, the Treaty of Maastricht (1992) was submitted to the Danish, Swiss, Irish, and Norwegian, peoples for ratification by plebiscite because of their respective constitutional law requirements.) Also, you are conflating nationhood with statehood. The concepts are different. Prof. Eastman wrote: >That Rhode Island and North Carolina did not immediately > become part of this national people does not make the new Constitution a > treaty. And here is the key point: by resorting to a higher authority > (the national people, rather than merely the agents of the state > people), the 1787 convention was able to offer a constitution that had a > constitutional footing, despite the breach of the unanimity requirement > in the Articles. COMMENT: As I already have pointed out, the unanimity requirement did not have to be met under the customary international law governing treaties. That was Madison's point. The 9-state convention ratification rule was legally sufficient. Furthermore, the appeal to the American people establishing the Constitution was clearly based in international law. See Burlamaqui and Vitoria. In fact, only the people as the true sovereign (or their representatives on their behalf) could enter into a treaty. Francisco Forrest Martin
