From LRC blog
Tom D and Tom W, right on, my neo-confederate brothers. (Joke, joke, I KID the Timster.) For anyone with a passing familiarity with contract law or international law (not that I know much about either topic , it’s natural to view the Constitution as a compact–treaty–between sovereign states. The original States party to this treaty created, by means of this instrument, a new international legal entity the powers of which were defined by the Constitution.
International law recognizes the creation of new states or even non-states with legal personality under international law, such as the United Nations, European Community, European Union, OAS, etc.–see, e.g., Ch. XXX of Ian Brownlie’s seminal Principles of Public International Law (6th ed.). Interesting, as Brownlie notes on pp. 59-60, regarding the status of “states” as legal persons under international law:
The position of members of federal unions is interesting. In the constitutions of Switzerland and the German Federal Republic component states are permitted to exercise certain of the capacities of independent states, including the power to make treaties. In the normal case, such capacities are probably exercised as agents for the union, even if the acts concerned are done in the name of the component state. However, where the union originated as a union of independent states, the internal relations retain an international element, and the union may act as agent for the states. The United States constitution enables the states of the Union to enter into agreements with other state of the Union or with foreign states with the consent of Congress. [emphasis added]
Note the almost casual observation implicit here, that the international legal personality known as the USA under international law originated as a union of independent states–states that even to this day are able, under international law, to enter into treaties with foreign states (that Congress’s consent is needed does not change the fact that they are sovereign “states” in the international law sense). In fact, this distinction makes a difference–as Brownlie observes, in other unions with “constituent” states, such as Canada, or Germany–that is, a union or state that did not arise as a union of independent states already having legal personality on the international law plane–if such a constituent state enters into a treaty, it is really acting merely as agent for the union, which is the “real” international legal personality.
By contrast, where the union is a creation of independent states under international law (as in the US case), these states may still be parties to treaties in their own right, under international law.
This commonplace observation under mainstream, standard international law principles of course supports the “compact” theory of the US union, as do standard principles of contract law.
(The issue of delegation of powers by states to international legal organizations is also treated in detail in chapter 5 of International Organizations and their Exercise of Sovereign Powers, by my good friend Dr. Dan Sarooshi (I met Dan when obtaining my master’s in international law at King’s College London and the London School of Economics; in fact, not only did we share the same student dorm (King’s College Hall, in Camberwell), Dan and I both studied under Lady Rosalyn Higgins, now Chief Justice of the International Court of Justice, who was then a law professor at LSE. What a pleasure. The woman is amazing. But again, let me reiterate, I know absolutely nothing about international law).)
[Update: The latest edition of the book, 8th edition, by James Crawford, has similar language, at pp. 116-17:
In some federations (notably those created by a union of states at the international level), the constituent members retain certain residual capacities. In the constitutions of Switzerland and Germany, component states are permitted to exercise certain state functions, including treaty-making. Normally, the states, even when acting in their own name, do so as agents of the union. The US Constitution enables the states of the Union to enter into agreements with other states of the Union or with foreign states with the consent of Congress. But this happens rarely if at all, and in most federations, old and new, the federal government’s power to make treaties with foreign states is exclusive. the position of the International Court, set out in LaGrand and Avena, is that international obligations under the Vienna Convention on Consular Relations (VCCR) must be fully observed irrespective of constitutional limitations, and, though the means of implementation remain for it to choose, the federal state incurs responsibility for the wrongful acts of its subdivisions.]
Note: Tom D, Timmy now has an addendum to his post admitting that he was wrong in saying that your writings were “almost the exclusive foundation for the book under review.” He says he should have said “for the relevant chapter in the book under review.” But then he says this “mistake” was “a completely irrelevant one, since this is the chapter relating to the subject at hand.” What is funny about this is that it was DiLorenzo who told me about that chapter’s reliance on his work, and knew I was going to blog it. He was not hiding it!
Moreover, note this his reply is devoid of substance. It amounts to name-calling and ad hominem, and whining that no one is taking his little blog posts seriously enough. He calls me a “silly little man,” which is, even if true, utterly irrelevant; he lies and says I don’t “believe in considering the ideas of those who don’t describe themselves as libertarians” (merely because I am skeptical of the essentially political views of a mainstream, modern law professor. Maybe Sandefur, the faux libertarian, eager to appear moderate and mainstream in his zeal to make a difference and work with the system, trusts the constitutional policy analyses of “neutral”, mainstream, modern law professors more than those of, oh, I don’t know, Thomas Jefferson or James Madison, or more contemporary, less modernist scholars closer in time to the Founding. But I don’t. And his attack on me for–get this–”praising” a book review written by someone (Tom DiLorenzo) … whose work was cited by the subject of the review. Got that? I must be wrong because I praised someone who did a book review of Napolitano…. because Napolitano cites the reviewer’s own work. Hunh? Wow, I see why Timmy likes modern law professor-think: he absorbed a lot of the slippery way of reasoning in law school.
Timmy also retreats to the charge of “willful ignorance” and intellectual dishonesty”–why? Why, beause I “ignore” Timmy’s repeated “demonstrations” of the opposite. In other words, because I have a substantive disagreement with him, I am ignorant and dishonest. As far as I can tell, he attaches great significance to the difference between saying there is a right to revolultion, and a right to secede. Reminds me of those legal theorists who say that although rights may not be “alienated,” they may be “forfeited.” Um, yeah. (I have already utterly demolished Sandefur’s reliance on his “revolution” theory which he tries to use to show that the Union’s attack on the CSA was justified.)
He also inserts the irrelevant and silly hypothesis that I must be choosing to rely on the “bad” works because the others are not “the work of officially approved Lew Rockwell affiliates”. Well, that proves it–I must be wrong–little Timmy has already done the work of psychologizing about why I’m wrong.
Now, this lying twit resents being called a lying twit. Boy, these activist sell-outs are touchy, aren’t they?