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Hastings Constitutional Law Quarterly

Abstract

This Article argues that the Constitution is a federal treaty based on an originalist understanding. As a treaty, it must be construed in conformity with the U.S.' customary international legal obligations, according to the international law governing treaties. Furthermore, these customary international legal norms often will take primacy over the major general principles of constitutional construction (viz., the principles of federalism, separation of powers, and the "living Constitution") because these international legal norms often are more determinate and less judicially-constructed than general principles of constitutional construction yet these norms can still accommodate these general principles. Furthermore, unlike other theories of constitutional interpretation, this approach provides a mandatory theory of constitutional construction that is deduced from the Constitution's "text" - in both senses of "language" and "legal instrument." This theory of constitutional construction will be called "international legal constructionism." By construing the Constitution in accordance with customary international law, the Constitution can meet the challenges of globalization and secure fundamental rights for the American people.

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