Can an earlier treaty (or

[Mark Tushnet]

I appreciate Professor Scarberry's clarification, and would like to
clarify my own observations.  I suggested that one part of the
disagreement being voiced was a jurisprudential one, essentially between
those taking a  legal-realist view that the law is a prediction of what
courts will do in fact and those (or the one, given the way the
discussion has proceeded) taking the view that the law has some
objective existence (alluded to in Professor Eastman's comments about
natural law) independent of what the courts do.  It occurred to me to
note that there may be a sort of role reversal here, which needs a
deeper explanation.  That is, my sense is that those taking the
legal-realist view in this conversation take the objectivist view in
other contexts.  (This is suggested, for example, by Professor
Scarberry's observation that, to some, organic developments -- expressed
in court opinions, given his examples -- might conflict with the
Constitution.)

The deeper explanation, missed in my earlier post, connects the law --
including statutory law, constitutional law, and customary international
law -- to democratic legitimacy.  The true objectivist position would
then be something like this (it's not my position, so I may
mischaracterize it):  The only legal norms that bind the American people
are those that we can be said in some sense to have consented to (or to
have been the authors of).  Customary international law norms can emerge
in the absence of consent by the American people, and to that extent
they could not bind us.  In the same way, judicial decisions organically
emerging from the judicial process might not have obtained our consent
in the right way.  (I'd note that, without a lot of conceptual work,
this version of objectivism couldn't be called a "natural law" position,
which, as I think it is ordinarily understood, turns on the substantive
values embodied in the law, not on its manner of adoption.)

I think there are some problems, probably not insurmountable, with this
position.  As Professor Martin has noted, the "persistent objector" rule
means that, with respect to most customary international legal norms,
the U.S. would not have objected to those norms that would be said,
under customary international law, to bind the United States.  He argues
that non-objection in a setting where objection has legal significance
is a way of indicating assent, in which case the American people would
have given assent to the customary international legal norms that bind
us.  And, to return to a point I alluded to briefly:  The American
people have consented in broad terms to judicial review (and, in the
present context, to the law-making processes of the international legal
system).  The position I'm describing would have to explain how results
emerging organically from processes to which we have given consent are
results to which we have not consented.  I don't say that this couldn't
be done, but I think it would take a lot more work than is done by
invoking the proposition that we can be bound only by norms to which we
have consented.
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