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Tuesday, January 24, 2006

The Constitution as Treaty

I know I should respond to Ethan's very interesting post in the comment section, but let me exercise my guest's prerogative to weigh in here.  I just have a few thoughts:

(1) There isn't much originalist support for seeing the Constitution as a treaty with the "international order", but there is some originalist support for seeing the Constitution as a "treaty" between the states of the Union.  The Articles of Confederation were certainly viewed by many of the states as a "treaty". That was part of the problem with the Articles because the states sometimes asserted the "last in time" rule as the basis for overriding the treaties as domestic state law. 

If the Constitution is a "treaty" between the states, formal international law suggests it should be interpreted consistent with international law.  Which is a nice formal originalist justification for using foreign legal interpretations of international law to interpret the Constitution. 

I have to say I don't buy this "Constitution-as-treaty-between-states" theory.  It doesn't seem to fit terribly well with all the political theorizing about higher law going on during the constitutional period.  But it is worth thinking about.

(2) On a more abstract level, which is where Ethan's post seems to operate, I think it is a very useful way of framing the question. I can't tell from his post, though, whether his argument is limited to using "international law" as a mode of constitutional interpretation or "foreign law" as well.  What is the difference?

Well, it is one thing to argue that the Constitution is some sort of "Treaty-With-The-World" and therefore we should consider foreign interpretations of international law when interpreting this treaty.  But what about foreign interpretations of their own domestic law? Doesn't the relevance of that kind of law have to draw on a different theory? Or is the "treaty-with-the-world" theory broad enough to encompass, say, South Africa's interpretation of South African law? 

(3) My own view, actually, prefers the use of foreign law over international law, because I believe the interpretation of international law should be and is controlled largely by Congress and the President.    (I have a formal article on this question here, if anyone is interested).  Foreign law seems to me less of a problem for constitutional interpretation, although I haven't yet heard a convincing theory of why it is justified.  Ethan's post may be a start toward that theory.

Posted by JulianKu on January 24, 2006 at 11:52 PM in Constitutional thoughts | Permalink


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Even if the Constitution does function as not only a charter outlining the scope of governmental power surrendered by the people, but also as an announcement to the world how we are going to govern ourselves, I guess I just don't understand why it would be relevant how a person who read that announcement but who was not a part of the contract understood certain terms. I would think that it would be highly relevant what its terms would have been understood by the people who ratified the Constitution, and I can see the logic in wondering what its terms are seen to mean today by the people who live under its terms.

Under this parallel charter / announcement idea, the Eighth Amendment is not only a restriction on what punishments we will sanction, but an annoucement to the world that we will not sanction cruel and unusual punishments. Now, if you accepted arguendo that the Eighth Amendment did not forbid capital punishment when it was ratified, and that it did not mean today that capital punishment is unconstitutional, why on Earth would it matter that people who read that annoucement but who live in, say, Australia, think that the death penalty is cruel and unusual?

I mean, I just don't understand the logic of it; there seems to be some glaring hole in the logic underlying the use of foreigners, and that is relevancy. What is it that you find out from looking at a foreign precedent? It doesn't tell you what the original meaning was, it doesn't tell you anything about what the evolving standards of decency in America are today; at most, it tells you that people in some other country - who almost certainly have a completely different history, culture and surrounding jurisprudence - have reached a given conclusion. The only way that I can see that this is helpful is if you're looking around for some sort of evidence to support a conclusion at which you have already arrived.

Am I just experiencing some sort of massive aphasia that prevents me from seeing the light on this? Am I just totally wrong, and there is in fact a glaringly obvious reason why the views of Ireland on abortion, or China on free speech, or Britain on the death penalty are highly relevant to American legal discourse? The fact that there are some very intelligent people who completely disagree with me on a proposition that seems to me to be as obvious as 2+2=4 just screams to me that I'm missing something obvious, and since I don't like to be thought a fool, I'd welcome it if someone would explain what it is that I'm missing. All I see is a guy holding a hat. Where's the rabbit?

Posted by: Simon | Jan 26, 2006 7:24:55 PM

Tim's argument might have traction here too, Simon: What about the usage of trade/course of performance/course of dealing issue? If constitutions are the sorts of things that bind states not only internally but function in a way to signal to the world community that certain protections will be recognized by a territorial sovereignty, why isn't the usage of trade and custom more generally relevant? This means that how terms are used even among non-signatories might be relevant.

To be sure, no one disputes that this foreign law stuff is really just a small consideration (and will rarely be dispositive) -- but your abolitionist position only follows on a very fictional social contract narrative of questionable credibility.

Posted by: Ethan Leib | Jan 25, 2006 6:40:41 PM

If the Constitution is a "treaty" between the states, formal international law suggests it should be interpreted consistent with international law. Which is a nice formal originalist justification for using foreign legal interpretations of international law to interpret the Constitution. I just don't buy this. As I readily agreed yesterday, in our interpretation of a treaty, the interpretations of co-signatories to a treaty are, within certain limits, relevant. They are not authoritative, but they might be pursuasive. But I would not expect a court to consult the Kremlin Accords (nor, a fortiori, a treaty unratified by the U.S. such as the United Nations Convention on the Law of the Sea; take note, Justice Ginsburg) to determine the meaning of a CAFTA provision. Why? Because the two treaties have nothing to do with one another! A treaty should not be "interpreted consistent[ly] with international law," it should be interpreted on its own terms - as closely as possible - consistently with how other signatories have construed its own terms. Therefore, even if the Constitution were a treaty between the States (which I do not think can be claimed, since it was not ratified by the state governments, but by the people of the states by proxy of a purpose-elected convention), I do not accept that this would provide some basis for the exportation of foreign precedent - nor unratified treaties, since this would effectively arrogate the ratification power to the Supreme Court - into the interpretation of the Constitution or wholly domestic law.

Whether you are an originalist or a living documentarian, there is simply no justification of which I can think for the use of foreign law that is consistent with either theory. I think the worst thing that can be said about Justice Scalia's argument against foreign law last year is that he has left nothing unsaid for anyone else to say on the matter. He should take the time to put it into a formal law review article so the entire debate can be considered closed.

Posted by: Simon | Jan 25, 2006 4:16:41 PM

Surely the fact that there is some originalist support for the notion of the US Constitution as a treaty among the 13 signatory states reveals the weakness of the orginalist position. This matter was debated heavily when Jefferson proposed the Louisiana Purchase to the country since that acquisition put on the table the prospect of new states, on territory not claimed by any of the original 13, entering the union. Jefferson himself seems to have moved (rather quickly) from a position of accepting the possibility of two nations, divided by the Mississippi (the position associated with the Constitution as a treaty), to becoming a fervent supporter of a continental US. Whatever the original understanding of this and other basic issues may have been (if such existed), it underwent many transformations, the most important of these happening rather early in the life of the country. The 20th century was and the 21st century is likely to be, rather tame by comparison.

Posted by: David Reed | Jan 25, 2006 2:58:48 PM

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