The Constitution as Treaty The International Legal Constructionalist Approach to the U.S. Constitution

Author: Francisco Forrest Martin
Publisher: Cambridge University Press
ISBN: 9781107407848
Published In: November 2012
Format: Paperback , 228 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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The Constitution as Treaty, first published in 2007, transforms the conceptualization of US constitutional law by exploring the interpretive implications of viewing the US Constitution as a treaty. It argues that federal courts constitute an international tribunal system, and, as such, their jurisdiction is governed by international law enabling them to exercise judicial review authority and undercutting much of the judicial activist critique. The Constitution as Treaty continues with an examination of what is international law and its major interpretive principles in order to set the stage for examining how different sources and principles of international law are intrinsically integrated into US constitutional law and, thereby, are available to federal courts for deciding cases. It addresses the Charming Betsy Rule, the non-self-execution doctrine, the last-in-time rule, and the proper use of customary international law and other international law sources not mentioned in Article III. The Constitution as Treaty concludes that federal courts generally must construe the United States' international legal obligations liberally.

Introduction		1
	What Is Our Constitution?	3
	Our Constitution Is a Treaty	4
	Constitutional Canards	9
	Correctly Conceptualizing Our Constitutional System	13
	Conclusion: Constitutional Coherence Constructed on International Law	14
PART I. UNITED STATES COURTS AS INTERNATIONAL COURTS		19
1.	Final Judicial Review Authority of Federal and Other International Courts	26
	1.1. Judicial review	27
	International Judicial Review of National Law	29
	International Judicial Review of Laws Promulgated by an Institution Vested with Lawmaking Authority under a Treaty	30
	International Judicial Review of State Constitutional and Statutory Law	33
	Final and Conclusive Authority of International Tribunals	35
	1.2. Only international legal constructionism provides sufficient justification of federal judicial review	40
2.	The Fallacy of Federal Judicial Activism in Light of International Law’s Non Liquet Prohibition Principle	50
PART II. INTERNATIONAL LAW		59
3.	The Positive Law of Nations and Its Interpretive Principles	62
	3.1. Treaties	64
	The Namibia Rule	65
	3.2. Customary international law	68
	The Persistent Objector Rule	73
	Emergence and Crystallization Rules	77
	3.3. General principles of law recognized by civilized nations	92
	3.4. Subsidiary interpretive sources	95
4.	The Natural Law of Nations	100
PART III. UNITED STATES LAW AS INTERNATIONAL LAW		105
5.	Article III, International Legal Interpretation	107
	5.1. U.S. Constitution: The International Legal Constructionist approach	108
	5.2. Treaties and their liberalization and limitations	113
	The Lynham Liberal Construction Rule	113
	The Limits of the Non–Self-Execution Doctrine	118
	5.3. Federal statutes: Implementing the Constitution and other treaties	130
	The Charming Betsy Rule	131
	The International Illegitimacy of the Last-in-Time Rule	135
6.	Extra–Article III, International Legal Interpretation	148
	Party-Based Jurisdictions	151
	Admiralty and Maritime Jurisdictions	155
	6.1. Sponsions as species of treaties: Signed treaties, executive agreements, and interstate and foreign compacts	156
	6.2. Constitutionally customizing customary international law for the United States	160
	6.2.1. The Persistent Objector Rule: Constitutional capacities and incapacities	170
	Presidential Capacities	170
	Senatorial Capacities	173
	Congressional Capacities	175
	Federal Courts’ Incapacity	176
	Conflicting Positions between the Political Departments	179
	State Capacities	180
	6.2.2. Federal statutes and executive acts cannot trump customary international legal obligations	186
	6.2.3. Emergence and crystallization rules for U.S. federal and extrafederal customary international law	190
	6.3. Eroding Erie: General principles of law recognized by civilized nations	193
	6.4. Sticking to Stare Decisis: Subsidiary interpretive sources	196
	6.5. The natural law of nations	198
7.	The General Liberal Construction Rule: Extending Lynham to Other Article III and Extra–Article III International Law	202
Conclusion		207
Epilogue		211
Index		21