The current treatment of international law in the United States is a very significant departure from what the Framers prescribed, with great care and specificity, in the Nation’s Constitution. Article VI’s Supremacy Clause and Article III’s grant of federal question jurisdiction carefully included international law, known to the Framers as the “law of nations,” as part of the “Laws of the United States,” thereby giving both treaties and other rules of international law the status of federal law in American courts. That treatment of the international law – both public and private – was faithfully implemented over the next several decades, with virtually no dissent from anywhere on the political spectrum of the day. Among other things, the Nation’s first Supreme Court decisions, first Attorney General opinions, first jury charges, first legislative acts and first diplomatic representations all uniformly treated the law of nations as national law. That treatment of the subject continued for much of the next two centuries of the Nation’s history.
Despite the Framers’ directions, decisions by the Supreme Court over the past several decades – including in Medellín v. Texas, Bond v. United States, Jesner v. Arab Bank and Day & Zimmerman, Inc. v. Challoner1 – have not treated international law as part of the Laws of the United States. Instead, these decisions declined to apply both treaties and customary international law rules, while treating most rules of private international law as matters of state (or other non-federal) law and suggesting that public international law rules have the same status. From an originalist perspective, the current treatment of international law by American courts is impossible to justify—notwithstanding the contrary claims of recent judicial decisions and some academic commentary. The Supremacy Clause’s text, interpreted as the Framers understood it, requires treating all rules of international law as part of the “Laws of the United States,” with preemptive force in both federal and state courts.
The current treatment of public and private international law conflicts with vital contemporary national interests and policies, paralleling those which motivated the Framers’ treatment of international law in the Constitution. Indeed, from the perspective of sound policy, it would be difficult to design a treatment of international law by a country’s courts that makes less sense, offers fewer benefits to a nation, and misses more opportunities for that nation and its citizens than that in the United States today. Long-standing, vital national interests require treating all rules of international law as matters of federal common law, which would remedy the serious defects in the current treatment of these issues in American courts.
Revisionist authors and judges claim that judicial decisions treating international law as a matter of federal law would usurp the authority of the federal political branches and betray domestic interests. In the words of Justice Scalia, concurring in Sosa v. Alvarez-Machain:
“We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law ….”2
That putatively originalist claim may have resonance in some circles, but it is fundamentally wrong: it has matters backwards.
In fact, “we Americans” declared our independence from Britain by specific reference to international law, which “we” then also repeatedly acknowledged and successfully appealed to as a vitally important safeguard for the United States and an equally important source of obligations of the Nation in its earliest years. Thereafter, “we Americans,” or more accurately, the Framers, provided a means in Article I of the Constitution for our Congress to enact federal statutes, but we also provided in Article VI’s Supremacy Clause that the law of nations would be “part of our law,” and, more specifically, part of the “Laws of the United States.” The Framers did so, with agreement across the political spectrum, to ensure that the collective will and interests of the United States people would be respected and that the Nation would comply with its international obligations and be able to participate effectively in the international legal system—and to prevent individual states from violating those obligations and diminishing the Nation’s international standing. And, for the same reasons, the Constitution specifically provided the federal judiciary with the power, and the obligation, under Article III, directly to apply those rules of international law.
Federal judges, therefore, do not usurp the powers of Congress by applying rules of international law. Rather, they do just what we Americans, acting through the Framers, directed, thus fulfilling their duties under Articles III and VI and ensuring the Nation’s compliance with its international obligations and effective exercise of its international rights. Those courts also do what the Supreme Court, and other U.S. courts, routinely and responsibly did for the first 200 years of the United States’ existence. In truth, it is those unelected federal judges who refuse to comply with the text of Articles III and VI and deny international law its status as part of “the Laws of the United States” who ignore the Framers’ objectives and the Nation’s history. These jurists—putative originalists—are those who usurp Congress’ law-making functions and flout the American people’s directives in the Constitution.
The refusal of some courts to give effect to the Supremacy Clause also usurps, or at least undermines, the federal political branches’ authority in another important respect. Treating international law as state law gives state courts and legislatures the power to decide both what the content of particular rules of international law is and whether those rules are directly applicable (that is, self-executing) in U.S. courts. For obvious reasons, that poses substantially greater risks of interference by individual states with the federal political branches’ authority over foreign relations and international commerce than does treating international law as federal law—with a single federal judiciary, rather than multiple state legislatures and judiciaries, responsible for determining when particular rules of international law will be directly applicable in U.S. courts. Again, the risks of judicial interference with the Nation’s foreign relations, and the usurpation of the political branches’ constitutional authority, comes not from treating international law as federal law, but from refusing to do so.
Finally, the federal judiciary’s failure to give effect to the Supremacy Clause has also betrayed the interests of “we Americans” in other, more substantive respects. Acting without political direction, the judiciary has, in addition to refusing to apply rules of international law, imposed both constitutional and other limitations on state and federal exercises of judicial and legislative jurisdiction in international cases,3 thereby significantly limiting the role of American courts and legislatures in addressing international matters. In so doing, the federal judiciary has denied American citizens the substantive protections that the political branches—both federal and state—have, exercising their constitutional powers, provided for them against foreign parties.
Those protections are more vital today than ever before. Other nations, including China, the European Union, Singapore and elsewhere, have made concerted efforts to ensure that their courts are able to address international developments, resolve international disputes, and apply rules of international law. In contrast, U.S. courts have, absent political direction, done the opposite, unilaterally withdrawing from the resolution of international disputes and the application of international law.4 This not only ignores the Constitution’s text and two centuries of subsequent history, but also illegitimately denies the Nation and its citizens—“we Americans”—vitally important substantive protections in times when those protections are more essential than ever.
Endnotes:
- Medellín v. Texas, 552 U.S. 491 (2008); Bond v. United States, 572 U.S. 844 (2014); Jesner v. Arab Bank, 138 S.Ct. 1386 (2018); Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3 (1975).
- 2. 542 U.S. 692, 750 (2004) (Scalia, J., concurring in part and concurring in the judgment).
- Representative examples include application of the Due Process Clause to limit U.S. jurisdiction over foreign parties (as in Daimler AG v. Bauman, 571 U.S. 117, 125 (2014) & J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879-80 (2011)) and applications of the so-called presumption against extraterritoriality to limit the reach of federal legislation (in RJR Nabisco v. European Cmty., 579 U.S. 325, 335 (2016); Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 253-55 (2010)).
- Representative examples include application of the Due Process Clause to limit U.S. jurisdiction over foreign parties (as in Daimler AG v. Bauman, 571 U.S. 117, 125 (2014) & J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 879-80 (2011)) and applications of the so-called presumption against extraterritoriality to limit the reach of federal legislation (in RJR Nabisco v. European Cmty., 579 U.S. 325, 335 (2016); Morrison v. Nat’l Austl. Bank, Ltd., 561 U.S. 247, 253-55 (2010)).
Opinion Disclaimer: The opinions and views expressed in this article are those of the author and not necessarily those of The National Law Review.
