96:01 tells us that your much appreciated opening is an invitation to take another look at the mirage of treaty dualism at times presented in relation to the Constitution of the United States. We do this by means of a case often used to introduce Articles with Amendments. 5 us 137 recognizes that the Constitution trumps statutes not in pursuance thereof. That only statutes in pursuance of Constitution have the character of law. Its reminder of Articles can be used to unconceal the mirage of treaty dualism suggested by doctrines such as nonselfexecution and last-in-time and can be restated simply and as follows. Article 6 tells us that the Constitution is the supreme law of the land. And that treaties are the supreme law of the land. (What a treaty is is often understood in light of the advice and consent condition of Article 2.) Given that it is Article 6 that has that treaties are the supreme law of the land, treaties are themselves part of the Constitution. They are incorporated by Article 6 despite the suggestions of 354 us 1. This is in contrast to statutes, which are only law under condition that they are in pursuance of the Constitution. (I say "law" here rather than "supreme law" because the in pursuance condition makes statutes necessarily subject to a higher standard.) As elsewhere noted, this asymmetry is reflected in Section 25 of the first Judiciary Act. And let it be said tangentially that as has been observed by tacitly and explicitly by many 32 us 51 reversed the nonselfexecution finding of 27 us 253 often cited as the seed of nonselfexecution in constitutional jurisprudence. It of course goes without saying that as courts have remarked it is possible for treaty clauses to request legislative action. But given Article 6's incorporation of treaties a default presumption of nonselfexecution makes about as much sense as requiring that a Constitutional provision, such as an amendment, requires further legislation in order to become law and provide the basis for a Constitutional claim. (Concession agreements with capitulation regimes concluded under the color of treaty such as Echota and Burlingame pose no conceptual or other difficulty here given that they are not very subtle attempts to subvert the idea of a treaty under its auspices.) This is perhaps still more ridiculous in the case of last-in-time, analogous as this doctrine is with a hypothetical state of affairs in which a Constitutional provision--again, say an amendment, Amendment 1--would not be a basis to strike down a statute abridging the freedom of speech, but would instead by modified by the abridgement, allowing the abridgment to control. That would be nonsense, or the equivalent of not having a Constitution, having a Constitution mean a set of incipient statutes, rather than a set of standards according to which overreaching statutes can be judged. Article 6 incorporates treaties. Nonselfexecution and last-in-time among other doctrinal attempts to stage a mirage of treaty dualism largely prompted by post Kellogg-Briand anxieties with respect to treaties such as the Charter of the United Nations include as an element of this mirage a historiographical smokescreen that together with the mirage and seance of which it is part that in effect reads treaties out of Articles, contrary to understanding and manifest text, لا اله الا الله محمد رسول الله
Thanks, this was useful for me.
I think A better analogy can be:
-monistic = soluble coffee.
-dualistic = filtered coffee.
Thank you Dr. Wernaart 🙂
🎉
very well explained. Thanks
So in the UK the 3 pillars of power the Judiciary ~ Parliament ~ The Government are a dualistic system because it takes time to pass “filter” law?
Thank you! This is very easy to understand!!!
96:01 tells us that your much appreciated opening is an invitation to take another look at the mirage of treaty dualism at times presented in relation to the Constitution of the United States. We do this by means of a case often used to introduce Articles with Amendments. 5 us 137 recognizes that the Constitution trumps statutes not in pursuance thereof. That only statutes in pursuance of Constitution have the character of law. Its reminder of Articles can be used to unconceal the mirage of treaty dualism suggested by doctrines such as nonselfexecution and last-in-time and can be restated simply and as follows. Article 6 tells us that the Constitution is the supreme law of the land. And that treaties are the supreme law of the land. (What a treaty is is often understood in light of the advice and consent condition of Article 2.) Given that it is Article 6 that has that treaties are the supreme law of the land, treaties are themselves part of the Constitution. They are incorporated by Article 6 despite the suggestions of 354 us 1. This is in contrast to statutes, which are only law under condition that they are in pursuance of the Constitution. (I say "law" here rather than "supreme law" because the in pursuance condition makes statutes necessarily subject to a higher standard.) As elsewhere noted, this asymmetry is reflected in Section 25 of the first Judiciary Act. And let it be said tangentially that as has been observed by tacitly and explicitly by many 32 us 51 reversed the nonselfexecution finding of 27 us 253 often cited as the seed of nonselfexecution in constitutional jurisprudence. It of course goes without saying that as courts have remarked it is possible for treaty clauses to request legislative action. But given Article 6's incorporation of treaties a default presumption of nonselfexecution makes about as much sense as requiring that a Constitutional provision, such as an amendment, requires further legislation in order to become law and provide the basis for a Constitutional claim. (Concession agreements with capitulation regimes concluded under the color of treaty such as Echota and Burlingame pose no conceptual or other difficulty here given that they are not very subtle attempts to subvert the idea of a treaty under its auspices.) This is perhaps still more ridiculous in the case of last-in-time, analogous as this doctrine is with a hypothetical state of affairs in which a Constitutional provision--again, say an amendment, Amendment 1--would not be a basis to strike down a statute abridging the freedom of speech, but would instead by modified by the abridgement, allowing the abridgment to control. That would be nonsense, or the equivalent of not having a Constitution, having a Constitution mean a set of incipient statutes, rather than a set of standards according to which overreaching statutes can be judged. Article 6 incorporates treaties. Nonselfexecution and last-in-time among other doctrinal attempts to stage a mirage of treaty dualism largely prompted by post Kellogg-Briand anxieties with respect to treaties such as the Charter of the United Nations include as an element of this mirage a historiographical smokescreen that together with the mirage and seance of which it is part that in effect reads treaties out of Articles, contrary to understanding and manifest text, لا اله الا الله محمد رسول الله
No one can explain it like that, thumbs up.
Thank you sir
Italy follows Monism..