This is the part that gets me, as I've seen it repeated without any cite to real authority:
"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?] In fact, it appears that this view was non-controversial. [PARDON MY IGNORANCE] 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. 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. 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? Robert Sheridan [EMAIL PROTECTED] SFLS > [Original Message] > From: Francisco Martin <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 8/7/2003 11:08:29 AM > Subject: Re: Just for laughs > > Prof. Maltz: > > As an originalist, the answer to your question about what weight should be > given to international law should be obvious. The Founding Fathers > recognized the Constitution as a treaty, and as a treaty, the Constitution > must be construed in conformity with the U.S.' customary international > legal obligations. This is a basic tenet of international law. The whole > discussion during the Constitutional Convention over how many states were > required for "ratifying" (the very term used in international law in regard > to treaties) demonstrates the Constitution's status as a treaty. The > delegates to the Constitutional Convention (e.g., Madison, Hamilton) and > Virginia Convention (e.g., Grayson and Madison) expressly recognized that > the customary international law governing treaties also governed the > dissolution of the Articles of Confederation and the establishment of the > Constitution. Indeed, the delegates to the Constitutional Convention > settled on the 9-state ratification rule for the Constitution in part > because the approval of 9 states were required under the Articles for the > U.S. to enter into a new treaty. > > I recognize that the view that the Constitution is a federal treaty may be > provocative -- perhaps shockingly outrageous -- to some members of this > listserv. However, the view that the Constitution is a treaty certainly is > not a novel idea. This view was widely shared by the Founders. In fact, > it appears that this view was non-controversial. The Founders operated on > the assumption that the Constitution was a treaty. I challenge anyone to > show me where any of the Founders thought that the Constitution was not a > treaty. > > Francisco Forrest Martin > > > [Original Message] > > From: Earl Maltz <[EMAIL PROTECTED]> > > To: <[EMAIL PROTECTED]> > > Date: 8/7/2003 12:24:16 PM > > Subject: Re: Just for laughs > > > > It seems to me that the issue is not whether one can cite international > > sources, but rather what weight those sources should be given. > Presumably, > > those who argue that the courts should consult international sources > > believe that they should be given considerable weight. I have some > > problems with how that is supposed to work. > > > > At the outset, there are even some problems with the use of state laws > for > > determining the scope of Fourteenth Amendment protections. In the > > abstract, there is no reason why New York should have any say in the law > of > > Texas. The argument seems to be that the laws of other states are > evidence > > of a prevailing national attitude--that is, they can be used to prove that > > the law of Texas is completely out of step with prevailing national > values. > > > > Now, leaving aside questions like which way does the fact that "only" > > thirteen states agree with Texas cut?, how do international authorities > > fit in? Obviously, if we agree that the law of Texas is completely out of > > step with the values held generally in the United States, surely one would > > not argue that Texas law is rehabilitated because the law of France is > the > > same as the law of Texas. Are we then to understand that the law of Texas > > may be unconstitutional, even if not inconsistent with the norms generally > > held in the United State, if it is inconsistent with the view of the wise > > men of the EU? > > > > Makes me glad to be an originalist troglodyte. > > > > At 11:27 AM 8/7/2003 -0400, Gerry Neuman wrote: > > > > >The idea that U.S. legal culture can be hermetically sealed from foreign > > >entanglements, that it is permissible to cite Dewey but not Kant, Rawls > > >but not Habermas, maybe even Locke but not Mill, seems not only > > >ill-advised but impracticable. > > >The American Journal of International Law (I'm not sure whether to > > >emphasize "American" or "International") plans to publish a short > > >debate (Agora) on using international law in constitutional > > >interpretation this fall. I hope that list members will consider reading > > >it. > > >-
