Can an earlier treaty (or

[Francisco Forrest Martin]

Prof. Scarberry wrote: "The material I quoted from the Restat. 2d of
Foreign Relations Law strongly supports my argument: if current
international law purports to give individuals standing to assert customary international law as a trump over federal statutes, then it is a new genus, and old court opinions referring to traditional international law are almost completely inapposite. In addition, Professor Tushnet raised the interesting question whether
judicial acceptance in the past of traditional international law implies acceptance today of current international law, to the extent that the current law grows organically from the traditional. I don't think Professor Martin's view of international law is an organic growth from the traditional law. It also seems to me that organic growth of international law can bring it into conflict with the Constitution."

Two points to consider: First, the Constitution is an organic instrument.  McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 ("we must never forget, that it is a constitution we are expounding."); see Trop v. Dulles, 356 U.S. 86, 101 (1958) (8th Amendment "must draw its meaning from the evolving standards of decency").  Second, the Supreme Court recognized the customary international law also was evolving.  See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (distinguishing between ancient and modern law of nations).

Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law