Reviewed by Sanford R. Silverburg, Department of History and Politics, Catawba College. Email: ssilver [at] catawba.edu.
The current US Constitution is, of course, the second constitution that created the second American republic in North America. To this document Francisco Martin attributes, through a strongly argued thesis, the character of a treaty. At first blush it would seem that the two formats represent dissimilar, functional albeit related, concepts. Historically for certain, and prior to the Constitutional Convention, treaties cemented relations between recognized political entities. The US Constitution, one of the oldest if not the oldest written constitution in the political world, prioritized control over domestic policies in its Article I, which serves to establish with a legislative body the authority to deal with internal affairs, whereas Article II created a separate executive authority to serve as head of state and head of government, thus creating a governmental link to external states.
Martin tweaks the interest of the reader in the Prologue by noting the first Executive Department established was responsible for Foreign Affairs, but then extends the idea with an exaggeration that: “Congress” was given “custody and charge of the US Constitution” to this Department (p.xi). The meat of the argument, presented now in book-length form, is an expansion of the author’s initial presentation in a law journal (2004) that the US Constitution is a treaty, thus creating an obligation for the national government to adhere to contemporary international legal instruments and international human rights agreements in particular. A similar argument was previously advanced by Martin Flaherty (1999) who claimed that it was the Founders’ intent to reassure the civilized world of the ability of the new nation to engage seriously with them. The theory here is argued from the perspective of international legal constructivism. It is the explication of this theory that becomes the framework of his major thesis that the US Constitution is a treaty and has wide implications for the notion that some set of international law should be a part of federal legislation by virtue of jurisdiction.
Martin’s theory can be described thusly: He begins with a major argument that is debatable. For Martin, the Constitution, as originally intended, was to be “a treaty between the thirteen states” (p.4). But his reference is to the correction made by the Framers as a result of the violations committed by some states under the Articles of Confederation, engaging in foreign relations as individual states. Thus, a federal system was created with greater centralized authority. The argument is that the Founders understood the meaning of the word “states,” as it was commonly used [*1008] in the Law of Nations at the time of the constitution’s creation, was synonymous to sub-units of a federal union. In this regard, Martin’s thesis has already been held up to criticism because: 1) it was ratified by the People, and 2) Madison, himself, declared the constitution not a treaty, to which Martin replies that the Constitution was ratified by state ratifying conventions, although as a republican practice. Madison, according to Martin, clearly pointed to the use of treaty as a league, a clear indicator of intent of the Articles of Confederation. Nineteenth century American jurists also refused to admit the similarity, since as states’ rights advocates, if the constitution was a treaty, state authority would be further diminished because there would be no way in which a state could abjure from a commitment. To this, Martin replies that SCOTUS was given the authority to mediate inter-state conflicts. Curiously, there is no mention here of MISSOURI v. HOLLAND (1920), which specifically speaks to the issue of states and federally-initiated treaties. Moreover, Martin boldly asserts: “Given that the Constitution is a treaty, the conception of our constitutional law changes” (p.13).
We can parse language as attorneys frequently do in an attempt at sophistry, but there are times when clarity is important. One such instance occurs when Martin claims that the Constitution “created” the SCOTUS, rather than “established” an institution that was subsequently operationalized by the Judiciary Act of 1789. Martin then adds an important qualification, claiming the Court sits as an international court when it serves as a prize court, except within its original jurisdiction. But he also conflates and equates nation-states with sub-units of a federal union.
The substance of the book is divided into three parts. Martin initially argues that the federal court system, as a corporate body, represents an international tribunal whose jurisdiction is governed by international law as an extra-Article III source. He then moves in the next section to describe the components of international law and its relationship to American domestic legislation. The third part then assesses Article III of the Constitution and its supposed international legal origins.
The argument presented is understood to be reflective of the United States at the time of ratification of the Constitution. Language and its substantive meaning evolves along with the legal instruments that develop through its employment. Hence the US Constitution is not the Articles of Confederation, and the sovereign states under the league of friendship of the Articles are not the states as sub-units of the current federal union. Nor, can states in the United States be construed as sovereign entitites recognized by the Treaties of Westphalia. Martin places strong emphasis on the etymological origins of “federal,” whose Latin origin is “foedus,” which in turn is a type of treaty. Historical debate would make mention that Madison, during the ratification period employed “federal” as treaty – a nice historical argument, but little else.
The Constitution, in fact, does speak to treaties under a separate governing principle. In fact, the Supremacy Clause, Article VI, §2, as interpreted by the Supreme Court is superior to any [*1009] state constitution or state statute (BALDWIN v. FRANKS 1887) and recognized by states courts in MISSOURI v. ARNOLD (1941). I would add that, with regard to federal statutes, lex posterior (giving precedence to newer law) applies (COOK v. U.S. 1933). Treaty nullification can, therefore, be effected by statute, if one follows LEM MOON SING v. U.S., (1895). Following this line, would Martin say that Congress can nullify the Constitution (which of course it can via the amending process found in Article V)? The Court also noted in DOE v. BRADEN (1853) that the Constitution is superior to treaties, but federal courts can not nullify treaties even if there is a conflict between the two agents as found in FELLOW v. BLACKSMITH (1857). Perhaps the strongest Court statement is found in REID v. COVERT (1957), with the decision that no treaty can override the Constitution.
When assuming the Constitution is a treaty, Martin applies the principle of the prohibition on non liquet (inventing law when no source is applicable), thus denying federal courts the ability to rule outside the explicit confines of the so called International Bill of Rights, the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights (1966). But Martin does not establish whether these norms rise to the level of jus cogens (peremptory norm that cannot be ignored). Nor is there opinio juris (prevailing opinion) or state practice in evidence to give rise to customary international law, which leads to what I believe to be Martin’s ultimate goal to have the US behave as an agressive participant in activating human rights. As America was to operate in a geopolitical vacuum, Article III does set out a structure to deal with the then known world. The argument that the US Constitution is a treaty is, understandably, a difficult sale to make. Martin’s effort seems insufficient. Part of the hesitancy may result from the potential for intrusion of foreign decisions and international public opinion on state authority, as, for example, in capital punishment cases. There might be room for debate in an historical arena, but in the area of international law, supporting evidence is lacking.
Part II presents an elementary outline of the sources of international law, with a discussion of the primary and secondary sources as stated in Article 38 of the Statute of the International Court of Justice. There is nothing found here extraordinary or noteworthy to anyone but the novice to international law. Martin does make a mark in his discussion of subsidiary sources when introducing more contemporary examples of the acceptance of stare decisis in international law, as supported by instruments creating the Caribbean Court of Justice and the European Charter (p.97). Martin treads in dangerous waters, however, when he introduces the current role of natural law in international law, which he considers only briefly.
Part III represents the heart of Martin’s treatment, as he delves into an interpretation of US federal law as international law. The argument begins with the federal courts’ authority under Article III of the Constitution, reprising what Martin had noted earlier as the [*1010] etymologically important origins of “federal” – foedus, which translates as “treaty.” In a circuitous line of reasoning, he follows with an interpretation of Article III that lays out the authority of federal courts to employ three sources of international law: 1. The Constitution, which he claims to be a treaty, and ipso facto an international legal source; 2. Treaties to which the US is a party, and federal statutes that implement the Constitution; and 3. “other US treaties, and the law of nations” (p.107). In this manner, the reader is led into the theoretical framework of International Legal Constructionism, which in turn – and here is the key as convoluted as it might appear to some – “requires that the Constitution’s text be construed in conformity with the United States’ international legal obligations because the Constitution is a treaty that per the conventional law of nations must be construed in conformity with the states-parties’ other international legal obligations” (p.108). So says the Bellman’s rule-of-three (from Lewis Carroll’s nonsense poem, “The Hunting of the Snark”), so be it, but only if it were so, then all else is correct. The International Law Commission also incorporates the various interpretive methods of reading the Constitution which then fits easily into an international legal mould. Martin’s argument continues to consider how treaties operate and how they are to be interpreted by the High Court. Again and again, Martin reviews the relationship of SCOTUS’ rulings as they relate to or involve international legal principles or norms for which there is no dispute, but why then are they equivalent?
I could nit pick a bit with some specific factoids Martin offers, such as referring to Westphalia as the “Treaty” rather than the Treaties or the Peace of Westphalia (p.27), or when he claims that “The only federal case before MARBURY that invalidated a federal statute was HAYBURN’S CASE (1792)” (p.43), which is not exactly accurate. Two years after HAYBURN, the High Court declared U.S. v. YALE TODD (1794), although it was not reported until it appeared in a footnote in U.S. v. FERREIRA (1851). Other cases that should be considered are HYTON v. U.S., (1795), WARE v. HYLTON (1796), and CLERKE v. HARWOOD (1797). Martin’s error in criticizing CJ Marshal’s lack of support for citing precedent in MARBURY in the establishment of “judicial review” (p.43, fn.79) is thus a bit weak. It becomes important only because Martin argues that the International Legal Constructivism is a superior theory or approach. Martin connects international law as precedent for establishing rules by which the state, epitomized by federal law, is obliged to follow.
If nothing else, Martin has taken a bold new approach to place the US Constitution in a position for alternative interpretations, thus applying a distinctive theory. For this, alone, he should be applauded and credited. I found the strength of his argument wanting until he demonstrates that the values undergirding the language of the Founders has remained constant. If, indeed, this conclusion has survived, where can the justification for new subsidiary sources of international law be found? Criticism aside, there is enough here in this brief treatise with which many others may grapple. [*1011]
Flaherty, Martin S. 1999. “History Right?: Historical Scholarship, Original Understanding, and Treaties as ‘Supreme Law of the Land.’” 99 COLUMBIA LAW REVIEW 2095.
Martin, Francisco Forrest. 2004. “Our Constitution as Federal Treaty.” 31 HASTINGS CONSTITUTIONAL LAW QUARTERLY 269.
BALDWIN v. FRANKS, 120 US 678 (1887).
CLERKE v. HARWOOD, 3 Dall. 342 (1797).
COOK v. U.S., 288 US 102 (1933).
DOE v. BRADEN, 57 US 635 (1853)
FELLOW v. BLACKSMITH, 60 U.S. 366 (1857)
HAYBURN’S CASE, 2 Dall. 409 (1792).
HYLTON v. U.S., 3 Dall. 171 (1795).
LEM MOON SING v. U.S., 158 US 538 (1895).
MARBURY v. MADISON, 1 Cranch 137 (1803).
MISSOURI v. ARNOLD, 347 No. 413, 147 S.W.2d 644 (1941), cert. den. 313 US 589).
MISSOURI v. HOLLAND, 252 U.S. 416 (1920).
REID v. COVERT, 354 U.S. 1 (1957)
U.S. v. FERREIRA, 13 How. 40 (1851).
U.S. v. YALE TODD (1794), in U.S. v. FERREIRA, 13 How. 40 (1851).
WARE v. HYLTON, 3 Dall. 199 (1796).
© Copyright 2008 by the author, Sanford R. Silverburg.
The Constitution as Treaty: The International Legal Constructionalist Approach to the U.S. Constitution