International Law in the U.S. Supreme Court: Continuity and Change

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Author: David L. Sloss | Michael D. Ramsey | William S. Dodge

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international law in the u.s. supreme court From its earliest decisions in the 1790s, the U.S. Supreme Court has used international law to help resolve major legal controversies. This book presents a comprehensive account of the Supreme Court’s use of international law from the Court’s inception to the present day. Addressing treaties, the direct application of customary international law, and the use of international law as an interpretive tool, this book examines all the cases or lines of cases in which international law has played a material role, showing how the Court’s treatment of international law both changed and remained consistent over the period. Although there was substantial continuity in the Supreme Court’s international law doctrine through the end of the nineteenth century, the past century has been a time of tremendous doctrinal change. Few aspects of the Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago. David L. Sloss is Professor of Law at Santa Clara University School of Law, where he serves as Director of the Center for Global Law and Policy. He is the editor of The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009). He has published numerous articles on the history of U.S. foreign affairs law and the judicial enforcement of treaties in U.S. courts. Michael D. Ramsey is Professor of Law at the University of San Diego School of Law. He is the author of The Constitution’s Text in Foreign Affairs (2007) and of numerous articles examining the foreign affairs aspects of the U.S. Constitution in the Founding era. William S. Dodge is Professor of Law at the University of California, Hastings College of the Law. He is coauthor (with Detlev Vagts and Harold Koh) of Transnational Business Problems (4th ed. 2008) and has written extensively on the history of international law in American courts and on statutory interpretation in the international context.

International Law in the U.S. Supreme Court continuity and change David L. Sloss Santa Clara University School of Law

Michael D. Ramsey University of San Diego School of Law

William S. Dodge University of California, Hastings College of the Law

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City Cambridge University Press 32 Avenue of the Americas, New York, NY 10013-2473, USA www.cambridge.org Information on this title: www.cambridge.org/9780521119566 c Cambridge University Press 2011

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2011 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging in Publication data International law in the U.S. Supreme Court : continuity and change / [edited by] David L. Sloss, Michael D. Ramsey, William S. Dodge. p. cm Includes bibliographical references and index. ISBN 978-0-521-11956-6 1. United States. Supreme Court. 2. Law – United States – Foreign influences – Cases. 3. International law and municipal law – United States – Cases. 4. International law – United States – Cases. I. Sloss, David (David L.), 1957– II. Ramsey, Michael D., 1964– III. Dodge, William S., 1964– KF358.I58 2011 341.0973–dc22 2010046526 ISBN 978-0-521-11956-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

We dedicate this book to the memory of Louis Henkin (1917–2010), who pioneered modern foreign affairs law scholarship.

Contents

List of Contributors Table of Cases Acknowledgments

page xi xix xxxv

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PART I

FROM THE FOUNDING TO THE CIVIL WAR

1 International Law in the Supreme Court to 1860 . . . . . . . . . . . . . . . . . . . . . . . 7 David L. Sloss, Michael D. Ramsey, and William S. Dodge PART II

FROM THE CIVIL WAR TO THE TURN OF THE CENTURY

2 Treaties in the Supreme Court, 1861–1900 . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Duncan B. Hollis 3 Customary International Law in the Supreme Court, 1861–1900 . . . . . . . . . . . 89 David J. Bederman 4 International Law as an Interpretive Tool in the Supreme Court, 1861–1900 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Thomas H. Lee and David L. Sloss 5 A Social History of International Law: Historical Commentary, 1861–1900 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 John Fabian Witt PART III

FROM THE TURN OF THE CENTURY TO WORLD WAR II

6 Treaties in the Supreme Court, 1901–1945 . . . . . . . . . . . . . . . . . . . . . . . . . 191 Michael P. Van Alstine 7 Customary International Law in the Supreme Court, 1901–1945 . . . . . . . . . . 225 Michael D. Ramsey 8 International Law as an Interpretive Tool in the Supreme Court, 1901–1945 . . 257 Roger P. Alford vii

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Contents

9 Varieties and Complexities of Doctrinal Change: Historical Commentary, 1901–1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Edward A. Purcell, Jr. PART IV

FROM WORLD WAR II TO THE NEW MILLENNIUM

10 Treaties in the Supreme Court, 1946–2000 . . . . . . . . . . . . . . . . . . . . . . . . . 317 Paul B. Stephan 11 Customary International Law in the Supreme Court, 1946–2000 . . . . . . . . . . 353 William S. Dodge 12 International Law as an Interpretive Tool in the Supreme Court, 1946–2000 . . 380 Melissa A. Waters 13 Global Power in an Age of Rights: Historical Commentary, 1946–2000 . . . . . . 416 Martin S. Flaherty PART V

INTERNATIONAL LAW IN THE U.S. SUPREME COURT IN THE TWENTY-FIRST CENTURY

Introductory Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 V.A

TREATIES AFTER 2000

Main Essay – Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451 Lori F. Damrosch Response Essay – The Benefits of Avoiding Conflicts between the Constitution and International Law . . . . . . . . . . . . . . . . . . . . . 465 Julian Ku Response Essay – Medellin and the Passive Vices . . . . . . . . . . . . . . . . . . . . . 472 David L. Sloss V.B

CUSTOMARY INTERNATIONAL LAW AFTER 2000

Main Essay – Sosa and the Derivation of Customary International Law . . . . . . 481 John O. McGinnis Response Essay – “Cheap Talk” about Customary International Law . . . . . . . 494 Chimène I. Keitner Response Essay – History, Ideology, and Erie v. Tompkins . . . . . . . . . . . . . . . 499 Edward A. Purcell, Jr. V.C

INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION AFTER 2000

Main Essay – International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity . . . . . . . . . . . . . . . . . . 507 Mark Tushnet

Contents

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Response Essay – Why Constitutional Comparativism Is Different: A Response to Professor Tushnet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518 Roger P. Alford Response Essay – Judicial Dialogue in Roper: Signaling the Court’s Emergence as a Transnational Legal Actor? . . . . . . . . . . . . . . . . . . . . . . . . . 523 Melissa A. Waters V.D

INTERNATIONAL LAW AND STATUTORY INTERPRETATION AFTER 2000

Main Essay – Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century . . . . . . 533 Ralf Michaels Response Essay – Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century . . . . . . . . . . . . . . . . . . . . . . . . . . 547 William S. Dodge Response Essay – Empagran: Empire Building or Judicial Modesty? . . . . . . . . 553 Paul B. Stephan V.E

INTERNATIONAL LAW AND THE WAR ON TERROR

Main Essay – The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 David Golove Response Essay – Constitutional Resolve in a World Changed Utterly . . . . . . . 575 Martin S. Flaherty Response Essay – Judicial Imperialism and the War on Terror Cases . . . . . . . . 582 Michael D. Ramsey PART VI

CONCLUSION

Continuity and Change over Two Centuries . . . . . . . . . . . . . . . . . . . . . . . . . 589 David L. Sloss, Michael D. Ramsey, and William S. Dodge Index

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List of Contributors

Roger P. Alford is Professor of Law at Pepperdine University School of Law. Prior to joining the faculty in 2000, Professor Alford served as a senior legal advisor with the Claims Resolution Tribunal for Dormant Accounts in Switzerland, the tribunal established to resolve claims to dormant Holocaust-era Swiss bank accounts. From 1995 to 1999, he practiced law with Hogan & Hartson (now HoganLovells) in Washington, DC. He clerked for Judge James L. Buckley on the U.S. Court of Appeals for the DC Circuit and Judge Richard C. Allison on the Iran–U.S. Claims Tribunal in The Hague, Netherlands. He has authored a number of scholarly articles and coedited Holocaust Restitution: Perspectives on the Litigation and Its Legacy (2006). The focus of his scholarship is foreign relations law, international commercial law, human rights law, arbitration, and international courts and tribunals. He is a permanent contributor to the international law blog Opinio Juris. He has been a member of the Council on Foreign Relations and has served on the Executive Council of the American Society of International Law, the Executive Committee of the Institute for Transnational Arbitration, and the Executive Committee of the American Branch of the International Law Association. David J. Bederman is the K.H. Gyr Professor of Private International Law at Emory University. He holds an AB in international affairs from Princeton University, an MSc in marine affairs from the London School of Economics, a JD from the University of Virginia, a Diploma from the Hague Academy of International Law, and a PhD in law from the University of London. He clerked for Judge Charles E. Wiggins on the U.S. Court of Appeals for the Ninth Circuit and served as a legal assistant at the Iran– U.S. Claims Tribunal in The Hague, Netherlands. Professor Bederman’s academic and professional career has focused on international law and its practical impact on American government. He represents clients on important constitutional and international law issues, including a number of cases before the U.S. Supreme Court and significant international arbitrations. He has served as a litigation consultant to the U.S. Departments of Justice, State, and Treasury and numerous federal agencies. Professor Bederman’s research interests also include legal theory and history, admiralty and maritime law, and federal practice and procedure. He is a member of the board of editors of the American Journal of International Law. Lori F. Damrosch is the Hamilton Fish Professor of International Law and Diplomacy and Henry L. Moses Professor of Law and International Organization at Columbia xi

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University. In 2009, she was a visiting professor at Harvard Law School. She received her BA from Yale, summa cum laude, in 1973 and her JD from Yale Law School in 1976. She clerked for Judge Jon Newman on the U.S. District Court for the District of Connecticut. Professor Damrosch served in the Office of the Legal Adviser, U.S. Department of State, from 1977 to 1980 and with Sullivan & Cromwell from 1981, until she joined the Columbia University faculty in 1984. Her publications include The International Court of Justice at a Crossroads (1987; editor); Law and Force in the New International Order (1991; editor); Enforcing Restraint: Collective Intervention in Internal Conflicts (1993; editor); Beyond Confrontation: International Law for the Post–Cold War Era (1995; editor); Enforcing International Law through Non-Forcible Measures (1997); and International Law: Cases and Materials (5th ed. 2009). She is a member of the Council on Foreign Relations and the Department of State Advisory Committee on International Law. She served as Vice President of the American Society of International Law from 1996 to 1998 and as a counselor from 2001 to 2005. She has been on the board of editors of the American Journal of International Law since 1990 and its Coeditor-inChief since 2003. William S. Dodge is Professor of Law at the University of California, Hastings College of the Law. He is coauthor (with Detlev F. Vagts and Harold Hongju Koh) of the casebook Transnational Business Problems (4th ed. 2008) and has written extensively on, among other topics, the history of customary international law in American courts and statutory interpretation in the international context. In 2004, he wrote the Amicus Brief of Professors of Federal Jurisdiction and Legal History in Sosa v. Alvarez-Machain, the position of which the Supreme Court adopted. He is a member of the Department of State Advisory Committee on International Law. Professor Dodge received his BA in History, summa cum laude, from Yale in 1986 and his JD from Yale Law School in 1991. After law school, he clerked for Judge William A. Norris on the U.S. Court of Appeals for the Ninth Circuit and for Justice Harry A. Blackmun on the U.S. Supreme Court. He practiced law with Arnold & Porter in Washington, DC, before joining the University of California, Hastings, faculty in 1995. Martin S. Flaherty is Leitner Family Professor of Law and Co-Founding Director of the Leitner Center for International Law and Justice of Fordham Law School. He is also a visiting professor at the Woodrow Wilson School of Public and International Affairs, where he was a Fellow in its Program in Law and Public Affairs. Professor Flaherty recently founded the Rule of Law in Asia Program at the Leitner Center. Previously, Professor Flaherty clerked for Justice Byron R. White on the U.S. Supreme Court and Chief Judge John Gibbons on the U.S. Court of Appeals for the Third Circuit. He holds a BA, summa cum laude, from Princeton; an MA and MPhil in history from Yale; and a JD from Columbia Law School, where he was Book Review and Articles Editor of the Columbia Law Review. Formerly chair of the New York City Bar Association’s International Human Rights Committee, he has led and participated in human rights missions to Northern Ireland, Turkey, Hong Kong, Mexico, Malaysia, Kenya, and Romania. He is also a member of the Council on Foreign Relations. Professor Flaherty’s publications focus on constitutional law and history, foreign affairs, and international human rights. David Golove is the Hiller Family Foundation Professor of Law at New York University School of Law. He specializes in constitutional law and history, focusing on foreign affairs, and has written extensively in these fields. Among his best-known writings is a


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book-length article “Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power,” published in the Michigan Law Review. He also coauthored (with Bruce Ackerman) a Harvard Law Review article on the constitutionality of congressional–executive agreements. His most recent article, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition” (NYU Law Review, with Daniel Hulsebosch), offers an account of the American Constitution as, fundamentally, an international document designed to integrate the new nation into the wider community of European states governed by the law of nations. Professor Golove received his BA from the University of California at Berkeley in 1979 and his law degrees from Berkeley and Yale. He teaches in the fields of constitutional law and international law. Professor Golove is a Codirector of the NYU Center on Law and Security. Duncan B. Hollis is Associate Dean for Academic Affairs and Professor of Law at Temple University School of Law. His scholarship focuses on issues of authority in international and foreign affairs law. Professor Hollis coauthored and coedited National Treaty Law & Practice (2005), which analyzes how different nation-states use their domestic laws to regulate the negotiation, conclusion, and implementation of treaties. Beyond treaties, Professor Hollis researches the broader role that agreements play in U.S. and international affairs, whether via political commitments, foreign compacts, or new rules for cyberwarfare. His work was cited repeatedly by the dissent in the 2008 U.S. Supreme Court decision Medellin v. Texas, and he counseled the Senate Foreign Relations Committee on possible Senate responses to that decision. Professor Hollis received his AB, summa cum laude, from Bowdoin College. In 1996, he received a Master in International Law and Diplomacy degree from the Fletcher School at Tufts University and a JD, summa cum laude, from Boston College Law School. From 1998 to 2004, he served as an attorney adviser in the State Department’s Office of the Legal Adviser. Since 2006, Professor Hollis has been a regular contributor to the international law blog Opinio Juris. Chimène I. Keitner is Associate Professor of Law at the University of California, Hastings College of the Law. Her scholarship focuses on the relationships among law, communities, and borders. She is the author of The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation-Building (2007) and of numerous journal articles on questions involving the intersection of international and domestic law, international law and international relations, and the history of political ideas. She earned an AB in history and literature from Harvard University, a DPhil in international relations from Oxford University as a Rhodes Scholar, and a JD from Yale Law School as a Paul & Daisy Soros Fellow. Prior to teaching, Professor Keitner clerked for the Chief Justice of the Supreme Court of Canada and spent several years as a litigator in San Francisco. In 2010, she authored the Amicus Brief of Professors of Public International Law and Comparative Law in the U.S. Supreme Court case Samantar v. Yousuf. Her recent work includes comparative and historical projects related to alien tort litigation, the extraterritorial application of public law, and foreign official immunity. Julian Ku is Professor of Law at Hofstra University School of Law in New York. He teaches and writes in the areas of international and constitutional law. He has published more than 20 articles, book chapters, and essays in publications such as the Yale Law Journal, Supreme Court Review, and Virginia Journal of International Law. He is a

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cofounder of the international law blog Opinio Juris. Prior to joining the Hofstra faculty in 2002, Professor Ku clerked for Judge Jerry Smith on the U.S. Court of Appeals for the Fifth Circuit and served as an Olin Fellow and Lecturer in Law at the University of Virginia Law School. Professor Ku holds a BA from Yale University and a JD from Yale Law School. He has taught as a visiting professor at William and Mary Marshall-Wythe College of Law and recently served as the Fulbright Distinguished Lecturer in Law at East China University of Political Science and Law in Shanghai, China. Thomas H. Lee is Leitner Family Professor of Law and Director of International Studies at Fordham University School of Law in New York, where he teaches and writes in the areas of constitutional law, federal courts, and international law. He is the author of many articles and of a forthcoming book on the international laws of war and the American Civil War. He received his JD from Harvard Law School, where he was Articles Chair of the Harvard Law Review and winner of the Laylin Prize in International Law. He also holds an AB, summa cum laude, and an AM in East Asian Studies from Harvard, where he is currently a PhD candidate in government, specializing in international relations theory. Prior to teaching, he served as a U.S. naval intelligence officer from 1991 to 1995, with four submarine deployments. He clerked for Judge Michael Boudin on the U.S. Court of Appeals for the First Circuit and for Justice David Souter on the U.S. Supreme Court. He has taught as a visiting professor at Columbia Law School, the University of Virginia School of Law, Leiden University in the Netherlands, and Sungkyunkwan University in Seoul, Korea. John O. McGinnis is the George C. Dix Professor of Law at Northwestern University. He is a graduate of Harvard and Harvard Law School, where he was an editor of the Harvard Law Review. He has an MA in philosophy and theology from Balliol College, Oxford. He has taught administrative law, constitutional law, international economic law, and antitrust. He is a past winner of the Paul Bator Award given by the Federalist Society to outstanding academics younger than 40. Professor McGinnis has published widely in professional journals and journals of opinion. Ralf Michaels is Professor of Law at Duke University School of Law, where he has taught since 2002. Previously, he was Senior Research Fellow at the Max Planck Institute for Comparative Law and Private International Law in Hamburg, Germany, and a Joseph Story Fellow at Harvard Law School. He holds degrees from the Universities of Passau and Cambridge. Since coming to Duke, he has held the Lloyd Cutler Fellowship at the American Academy in Berlin, a distinguished visitor fellowship at the Max Planck Institute in Hamburg, and a fellowship at the Program in Law and Public Affairs at Princeton University. He has been a visiting professor at the Universities of Paris II, Princeton, Pennsylvania, and Toronto. Professor Michaels teaches and researches in the areas of comparative law, conflict of laws, and law and globalization. He is coeditor and author of several books and articles, published in the United States and in Europe, in these areas. Currently, his main focus is on two projects: a theory of U.S. courts as world courts and (with Karen Knop (University of Toronto) and Annelise Riles (Cornell University)) the conflict of laws as a theory of global law. Edward A. Purcell, Jr., is the Joseph Solomon Distinguished Professor at New York Law School, where he teaches civil procedure, federal courts, complex litigation, and civil rights law. His most recent books include Originalism, Federalism, and the American


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Constitutional Enterprise: A Historical Inquiry (2007) and Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in TwentiethCentury America (2000), which won the Order of the Coif’s Triennial Book Award and the Triennial Griswold Prize of the Supreme Court Historical Society. Professor Purcell holds a PhD in American intellectual history from the University of Wisconsin and a JD from Harvard Law School. He joined Paul, Weiss, Rifkind, Wharton & Garrison in New York City in 1979, where he practiced law and worked on his second book, Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (1992). He has served on the board of directors of the American Society for Legal History and the Community Law Office of The Legal Aid Society and is currently on the editorial board of Continuity and Change and the academic advisory board of the Institute for Constitutional Studies at George Washington University Law School. Michael D. Ramsey is Professor of Law at the University of San Diego School of Law, where he teaches and writes in the areas of constitutional law, foreign relations law, and international law. He is the author of The Constitution’s Text in Foreign Affairs (2007) and of numerous articles on foreign relations law in publications such as the Yale Law Journal, University of Chicago Law Review, Georgetown Law Journal, and American Journal of International Law. He received his BA, magna cum laude, from Dartmouth College and his JD, summa cum laude, from Stanford Law School. Prior to teaching, he served as a law clerk for Judge J. Clifford Wallace on the U.S. Court of Appeals for the Ninth Circuit and for Justice Antonin Scalia on the U.S. Supreme Court. He practiced law with the law firm of Latham & Watkins, where he specialized in international finance and investment. He has taught as a visiting professor in the Department of Political Science at the University of California, San Diego, and the Department of Comparative Law at the University of Paris II – Sorbonne. David L. Sloss is Professor of Law at Santa Clara University School of Law, where he serves as the Director of the Center for Global Law and Policy. He is the editor of The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (2009). He has published numerous articles on the history of U.S. foreign affairs law and the judicial enforcement of treaties in U.S. courts. Professor Sloss received his BA from Hampshire College, his MPP from Harvard, and his JD from Stanford Law School. Prior to joining the Santa Clara University faculty, he taught for nine years at Saint Louis University School of Law. Before teaching, he clerked for Judge Joseph T. Sneed on the U.S. Court of Appeals for the Ninth Circuit and worked as an associate for Wilson, Sonsini, Goodrich & Rosati. He also spent nine years in the federal government, where he worked on East–West arms control negotiations and nuclear proliferation issues. Paul B. Stephan is the John C. Jeffries Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia School of Law and the Justin D’Atri Visiting Professor of Law, Business and Society at Columbia Law School. From 2006 to 2007, he served as Counselor on International Law in the U.S. Department of State and from 1993 to 1998, he helped organize and advise the U.S. Treasury’s program that provided technical assistance to tax authorities in former socialist countries. He has taught at the University of Virginia since 1979 and has held visiting appointments at law faculties in Russia, Austria, France, Germany, Switzerland,

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Australia, and Israel. During the two-year period between his graduation and return as a professor, he clerked for Judge Levin Campbell on the U.S. Court of Appeals for the First Circuit and for Justice Lewis F. Powell, Jr., on the U.S. Supreme Court. Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School. He graduated from Harvard and Yale Law School and served as a law clerk to Justice Thurgood Marshall on the U.S. Supreme Court. Professor Tushnet specializes in constitutional law and theory, including comparative constitutional law. His research includes studies examining (skeptically) the practice of judicial review in the United States and around the world. He also writes on legal and particularly constitutional history, with works on the development of civil rights law in the United States and (currently) a longterm project on the history of the Supreme Court in the 1930s. Professor Tushnet has authored several books on U.S. constitutional law and comparative constitutional law. Michael P. Van Alstine is Professor of Law at the University of Maryland School of Law. He has published widely in both English and German in the areas of foreign affairs law, treaty law, and international and domestic commercial transactions. His particular area of scholarly interest is the domestic application of international law, especially through the vehicle of treaties. Before joining the University of Maryland faculty in 2002, Professor Van Alstine spent eight years on the faculty of the University of Cincinnati College of Law. Professor Van Alstine has earned law degrees in the United States and Germany. He received both his Doctor of Laws and Master of Comparative Law degrees, summa cum laude, from the University of Bonn, Germany. He obtained his JD with high honors from George Washington University. Before becoming a law professor, he also practiced domestic and international commercial and business law at firms in the United States and Germany. Melissa A. Waters is Professor of Law at the Washington University School of Law. Her research interests include foreign relations law, international law, international human rights law, comparative law, and conflicts of law. Her scholarly work focuses on the incorporation of international law into domestic legal regimes, in particular on the role of transnational judicial dialogue in developing international legal norms and in transforming U.S. and other domestic courts into key mediators between domestic and international law. In 2006, her work was one of three U.S. entries selected by the American Society of International Law (through a peer-review process) for presentation at the inaugural Four Societies Symposium – a joint symposium of the American, Australia/New Zealand, Canadian, and Japanese Societies of International Law. Prior to teaching law, Professor Waters served in the U.S. State Department as Senior Advisor to Harold Hongju Koh, Assistant Secretary of State for Democracy, Human Rights, and Labor. She was a litigator at Williams & Connolly in Washington, DC, where she was a member of President Clinton’s legal defense team. She is a graduate of Yale and Yale Law School. John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. He is the author of widely acclaimed works on the history of American law, including Patriots and Cosmopolitans: Hidden Histories of American Law (2007), which explores law and nationhood at key moments in American history from the Founding to the Cold War, and of the prizewinning book The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004), as well


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as articles in the Columbia Law Review, Harvard Law Review, Yale Law Journal, and other scholarly journals. His writing has appeared in the New York Times, Slate, and the Washington Post. He is currently writing a book on the law of war in American history, from the Revolution to the turn of the twentieth century. Professor Witt is a graduate of Yale and Yale Law School and holds a PhD in history from Yale. Before returning to Yale, he was the George Welwood Murray Professor of Legal History at Columbia University. He served as law clerk to Judge Pierre N. Leval on the U.S. Court of Appeals for the Second Circuit.

Table of Cases

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) – 197, 279 Abbott v. Abbott, 130 S. Ct. 1983 (2010) – 444 Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2009) – 492 Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) – 371 Abington School District v. Schempp, 374 U.S. 203 (1963) – 339 Adamson v. California, 332 U.S. 46 (1947) – 275, 521 Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) – 367 Adula, The, 176 U.S. 361 (1900) – 105–07, 109–10 Afroyim v. Rusk, 387 U.S. 253 (1967) – 302, 344, 412, 435, 437, 602 Aguilar v. Standard Oil Co., 318 U.S. 724 (1943) – 203 Ah How v. United States, 193 U.S. 65 (1904) – 206–07 Ainsa v. United States, 161 U.S. 208 (1896) – 61, 68–72, 84 Air France v. Saks, 470 U.S. 392 (1985) – 337, 347 Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532 (1935) – 236 Alberty v. United States, 162 U.S. 499 (1896) – 81 Alden v. Maine, 527 U.S. 706 (1999) – 473 Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976) – 364, 401 Allgeyer v. Louisiana, 165 U.S. 578 (1897) – 235–36, 305, 597 Alling v. United States, 114 U.S. 562 (1885) – 71 Alverez v. United States, 216 U.S. 167 (1910) – 203, 207 American Banana Co. v. United Fruit Co., 160 F. 184 (S.D.N.Y. 1908) – 262

American Banana Co. v. United Fruit Co., 166 F. 261 (2d Cir. 1908) – 262 American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) – 260–69, 295–96, 388, 391, 541–42, 547, 599 Ambach v. Norwick, 441 U.S. 68 (1979) – 340 American Insurance Co. v. 356 Bales of Cotton (American Insurance Co. v. Canter), 26 U.S. 511 (1828) – 31–32, 98, 115, 199, 287 American Insurance Association v. Garamendi, 539 U.S. 396 (2003) – 220, 444, 462–63 Amiable Isabella, The, 19 U.S. 1 (1821) – 16–17, 47, 59, 81, 211 Amistad, The, 40 U.S. 518 (1841) – 25, 49 Anderson v. Abbott, 321 U.S. 349 (1944) – 365–66 Andrus v. Allard, 444 U.S. 51 (1979) – 351 Angarica v. Bayard, 127 U.S. 251 (1888) – 64, 71 Antelope, The, 23 U.S. 66 (1825) – 25, 35–37, 50, 92, 99–100, 104, 170–71, 488, 539, 543–44, 595–96 Apollon, The, 22 U.S. 362 (1824) – 38, 539 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) – 330, 388, 423, 593 Arizona v. California, 292 U.S. 341 (1934) – 210 Arkansas Railroad Commission v. Chicago, Rock Island & Pacific Railroad Co., 274 U.S. 597 (1927) – 293 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14) – 372 Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987) – 408 Asakura v. City of Seattle, 265 U.S. 332 (1924) – 198, 202–04, 212, 214, 311–12, 589 Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80 (1893) – 61, 72 Atkins v. Virginia, 536 U.S. 304 (2002) – 445, 525

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xx Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31) – 443–44, 453–54, 457–60, 469–70, 476–77 B. Altman & Co. v. United States, 224 U.S. 583 (1912) – 219–21, 592 Bacardi Corp. of America v. Domenech, 311 U.S. 150 (1940) – 203–05, 212–14 Baker v. Carr, 369 U.S. 186 (1962) – 333 Baldwin v. Franks, 120 U.S. 678 (1887) – 56, 77–78, 83 Baltimore & Ohio Railroad Co. v. Baugh, 149 U.S. 368 (1893) – 228, 503 Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965) – 364 Banco Nacional de Cuba v. First National City Bank of New York, 431 F.2d 394 (2d Cir. 1970) – 364 Banco Nacional de Cuba v. Sabbatino, 193 F. Supp. 375 (S.D.N.Y. 1961) – 360 Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962) – 360 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) – 251, 292, 322, 353–54, 359–64, 366, 368, 371, 375, 378–79, 429–33, 437, 503, 538, 598 Bank of Augusta v. Earle, 38 U.S. 519 (1839) – 29, 100, 103 Bank of the United States v. Tyler, 29 U.S. 366 (1830) – 30 Banks v. Greenleaf, 2 F. Cas. 756 (C.C. Va. 1799) – 29 Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5) – 365 Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298 (1994) – 197–98, 341 Barker v. Harvey, 181 U.S. 481 (1901) – 207, 215, 222 Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995) – 377 Bartram v. Robertson, 122 U.S. 116 (1887) – 70, 76, 83 Bas v. Tingy, 4 U.S. 37 (1800) – 584 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) – 306 Beers v. Arkansas, 61 U.S. 527 (1858) – 159 Belgenland, The, 114 U.S. 355 (1885) – 92, 100, 109–10, 126 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) – 555 Benito Estenger, The, 176 U.S. 568 (1900) – 603 Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978) – 367 Benson v. McMahon, 127 U.S. 457 (1888) – 58, 71, 81

Table of Cases Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957) – 384–86, 388 Berg v. British & African Steam Navigation Co., 243 U.S. 124 (1917) – 205, 235, 246 Bergere v. United States, 168 U.S. 66 (1897) – 72 Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926) – 238 Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954) – 364, 432 Best v. Polk, 85 U.S. 112 (1873) – 61, 67, 81 Bingham v. Bradley, 241 U.S. 511 (1916) – 205 Bissell v. Penrose, 49 U.S. 317 (1850) – 15, 34 Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518 (1928) – 233, 243 Black Diamond Steamship Corp. v. Robert Stewart & Sons, Ltd., 336 U.S. 386 (1949) – 350 Blackmer v. United States, 284 U.S. 421 (1932) – 255, 260, 268–69, 387, 407, 600 Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975) – 351, 555 Boddie v. Connecticut, 401 U.S. 371 (1971) – 477 Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795) – 367 Boom Co. v. Patterson, 98 U.S. 403 (1879) – 154, 301 Boos v. Barry, 485 U.S. 312 (1988) – 346 Botiller v. Dominguez, 130 U.S. 238 (1889) – 58, 61, 73 Boumediene v. Bush, 553 U.S. 723 (2008) – 447, 513, 561–63, 568, 568–71, 578–580, 583–84, 587, 593, 602–03 Bowers v. Hardwick, 478 U.S. 186 (1986) – 509 Braniff Airways, Inc. v. Nebraska State Board, 347 U.S. 590 (1954) – 341 Bray v. F. Hoffman-La Roche Ltd., [2002] 118 F.C.R. 1 (Austl.) – 533 Breard v. Greene, 523 U.S. 371 (1998) – 70, 327–28, 338, 394, 399–401, 421–23, 429, 441, 443, 453–55, 457–58, 469, 594 Bremen, The v. Zapata Off-Shore Co., 407 U.S. 1 (1972) – 554 Brig Amy Warwick, The (The Prize Cases), 67 U.S. 635 (1863) – 90, 92–97, 99, 105, 109–10, 121–22, 133, 142–47, 171–76, 180–83, 276, 562, 564–66, 585–86, 596, 603 Browder v. United States, 312 U.S. 335 (1941) – 268 Brown v. Board of Education, 347 U.S. 483 (1954) – 339, 366, 418, 431 Brown v. Duchesne, 60 U.S. 183 (1857) – 39 Brown v. Piper, 91 U.S. 37 (1875) – 113

Table of Cases Brown v. United States, 12 U.S. 110 (1814) – 34–35, 40, 43, 46, 50, 121–22, 175–76, 180, 574, 583, 585–86, 596 Brown v. Walker, 161 U.S. 591 (1896) – 76 Bryan v. Kennet, 113 U.S. 179 (1885) – 76 Bryant v. United States, 167 U.S. 104 (1897) – 71 Bucher v. Cheshire Railroad Co., 125 U.S. 555 (1888) – 502 Buena Ventura, The, 175 U.S. 384 (1899) – 132–33, 586 Bunting v. Oregon, 243 U.S. 426 (1917) – 273 Burger v. Kemp, 483 U.S. 776 (1987) – 346 Burnet v. Brooks, 288 U.S. 378 (1932) – 302 Burns Mortgage Co. v. Fried, 292 U.S. 487 (1934) – 233–34, 251 Burthe v. Denis, 133 U.S. 514 (1890) – 67, 71, 83 Bush v. Gore, 531 U.S. 98 (2000) – 177, 588 Bustillo v. Johnson, 548 U.S. 331 (2006) – 443–44, 454–57, 475–76 Butler v. Boston & Savannah Steamship Co., 130 U.S. 527 (1889) – 116, 305 Buttfield v. Stranahan, 192 U.S. 470 (1904) – 436 Cabell v. Chavez-Salido, 454 U.S. 432 (1982) – 340 California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935) – 294 Cameron Septic Tank Co. v. City of Knoxville, 227 U.S. 39 (1913) – 204, 210, 591 Carneal v. Banks, 23 U.S. 181 (1825) – 15 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991) – 554 Carter v. Carter Coal Co., 298 U.S. 238 (1936) – 294, 302 Cessna v. United States, 169 U.S. 165 (1898) – 72 Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889) – 56, 60–64, 68–70, 73–76, 116, 134–35, 141, 154–55, 184–85 Champion v. Ames, 188 U.S. 321 (1903) – 436 Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989) – 336–37, 347 Charlton v. Kelly, 229 U.S. 447 (1913) – 196, 206–07, 211, 217, 425 Chelentis v. Luderback Steam Ship Co., 247 U.S. 372 (1918) – 233, 239 Cherokee Nation v. Georgia, 30 U.S. 1 (1831) – 65, 196 Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641 (1890) – 70 Cherokee Tobacco, The, 78 U.S. 616 (1871) – 19, 58, 60, 62, 73–76, 134–36, 138, 141, 206, 590, 601 Cherokee Trust Funds, The, 117 U.S. 288 (1886) – 70

xxi Cheung Sum Shee v. Nagle, 268 U.S. 336 (1925) – 206–08, 590 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) – 332, 394–97, 439–40 Chew Heong v. United States, 112 U.S. 536 (1884) – 56, 58, 61, 64, 67, 69, 73–76, 80–82, 134, 155, 208, 311, 399, 458, 590, 599 Chin Fong v. Backus, 241 U.S. 1 (1916) – 206 China, The, 74 U.S. 53 (1869) – 94 Chinese Exclusion Case, The, 130 U.S. 581 (1889) – see Chae Chan Ping v. United States Chirac v. Chirac’s Lessee, 15 U.S. 259 (1817) – 14, 591 Chisholm v. Georgia, 2 U.S. 419 (1793) – 7, 41 Choctaw Nation v. United States, 119 U.S. 1 (1886) – 60, 72, 82 Choctaw Nations v. United States, 318 U.S. 423 (1943) – 210, 213 Chouteau v. Eckhart, 43 U.S. 344 (1844) – 20, 215 Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2000) – 347 Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990) – 406 Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) – 311–12 Church v. Hubbart, 6 U.S. 187 (1804) – 97 Chy Lung v. Freeman, 92 U.S. 275 (1876) – 60, 69 City of Boerne v. Flores, 521 U.S. 507 (1997) – 206 City of New York v. Miln, 36 U.S. 102 (1837) – 42, 48 City of Washington, The, 92 U.S. 31 (1876) – 97 Civil Rights Cases, The, 109 U.S. 3 (1883) – 58 Clark v. Allen, 331 U.S. 503 (1947) – 337, 340–41, 421, 426–27, 594 Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) – 503 Clinton Bridge, The, 5 F. Cas. 1060 (C.C.D. Iowa 1867) – 73 Cockrill v. California, 268 U.S. 258 (1925) – 214–15 Coffee v. Groover, 123 U.S. 1 (1887) – 76 Coker v. Georgia, 433 U.S. 584 (1977) – 412–13, 437, 517, 604 Comegys v. Vasse, 26 U.S. 193 (1828) – 17 Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988) – 454 Connecticut v. Massachusetts, 282 U.S. 660 (1931) – 231, 294 Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983) – 341

xxii Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) – 557 Cook v. Tait, 265 U.S. 47 (1924) – 268 Cook v. United States, 288 U.S. 102 (1933) – 203, 205–08, 210, 259, 399, 590 Cooper v. Aaron, 358 U.S. 1 (1958) – 431 Corbett v. Stergios, 381 U.S. 124 (1965) – 336 Cortez Byrd Chips v. Bill Harbert Construction Co., 529 U.S. 193 (2000) – 350 Cosgrove v. Winney, 174 U.S. 64 (1899) – 68 Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) – 306 Cotzhausen v. Nazro, 81 U.S. 152 (1871) – 79 Crapo v. Kelly, 83 U.S. 610 (1873) – 125 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) – 342, 463 Cross v. Harrison, 57 U.S. 164 (1854) – 38, 276 Cunard Steamship Co. v. Mellon, 262 U.S. 100 (1923) – 133, 259 Curtis’s Administratrix v. Fiedler, 67 U.S. 461 (1863) – 19 D’Arcy v. Ketchum, 52 U.S. 165 (1851) – 25 Da Costa v. Laird, 405 U.S. 979 (1972) – 326 Dainese v. Hale, 91 U.S. 13 (1875) – 128–29 Dames & Moore v. Regan, 453 U.S. 654 (1981) – 334, 424, 462 Davis v. Department of Labor & Industries, 317 U.S. 249 (1942) – 248, 597 Davis v. Police Jury, 50 U.S. 280 (1850) – 15 De la Croix v. Chamberlain, 25 U.S. 599 (1827) – 16, 25, 215 De Lima v. Bidwell, 182 U.S. 1 (1901) – 195, 198–99, 202, 218, 276, 310 Dent v. Emmeger, 81 U.S. 308 (1872) – 58, 70, 72, 79, 80 Department of Employment v. United States, 385 U.S. 355 – 342 DeWolf v. Rabaud, 26 U.S. 476 (1828) – 30 Disconto Gesellschaft v. Umbreit, 208 U.S. 570 (1908) – 212, 214, 238 District of Columbia v. Heller, 554 U.S. 570 (2008) – 513–14 Divina Pastora, The, 17 U.S. 52 (1819) – 16 Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) – 373, 492 Doe I v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003) – 373 Doe I v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) – 373 Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) – 372–373, 379, 434 Doe I v. Unocal Corp., 110 F. Supp. 2d 1294 (C.D. Cal. 2000) – 373 Doe v. Braden, 57 U.S. 635 (1854) – 18, 195

Table of Cases Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) – 446–47, 552 Dooley v. United States, 182 U.S. 222 (1901) – 195, 276, 596 Dorr v. United States, 195 U.S. 138 (1904) – 199, 271, 296 Downes v. Bidwell, 182 U.S. 244 (1901) – 199, 271–72, 296–97, 304–05, 312, 602 Draper v. United States, 164 U.S. 240 (1896) – 73, 87 Dred Scott v. Sandford, 60 U.S. 393 (1857) – 43–44, 49, 172, 311, 601 Dreyfus v. von Finck, 534 F.2d 24 (2d Cir. 1976) – 367 Duncan v. Louisiana, 391 U.S. 145 (1968) – 275, 431 Duus v. Brown, 245 U.S. 176 (1917) – 205 East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986) – 378 Eastern Airlines v. Floyd, 499 U.S. 530 (1991) – 337, 347 Edelman v. Jordan, 415 U.S. 651 (1974) – 466, 473 Edye v. Robertson (The Head Money Cases), 112 U.S. 580 (1884) – 60–63, 66–67, 73–74, 76, 134, 140, 204, 206, 222, 591, 593 EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) – 331, 388, 390–91, 393, 439–40, 540, 550, 600 El Al Israel Airlines v. Tsui Yuan Tseng, 325 U.S. 125 (1999) – 336–37, 347, 425, 593 Elfrida, The, 172 U.S. 186 (1898) – 96, 115 Ely’s Administrator v. United States, 171 U.S. 220 (1898) – 57, 60, 68, 72, 74, 81, 90 Emory v. Grenough, 3 U.S. 369 (1797) – 29 Empagran S.A. v. F. Hoffman-La Roche, Ltd., 2001 WL 761360 (D.D.C.) – 537 Enmund v. Florida, 458 U.S. 782 (1982) – 413, 437, 517 Ennis v. Smith, 55 U.S. 400 (1853) – 29, 235, 246 Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) – 225–56, 289–95, 353–54, 357, 359, 362–63, 366, 374–75, 378, 430, 432–33, 482, 487, 489, 494, 499–504, 597–599 Ex parte Atocha, 84 U.S. 439 (1873) – 58, 72 Ex parte Kan-gi-shu-ca, 109 U.S. 556 (1883) – 75 Ex parte Medellin, 223 S.W.3d 315 (Tex. Crim. App. 2006) – 454, 468–70, 475–77 Ex parte Milligan, 71 U.S. 2 (1866) – 146–47, 162, 583, 603 Ex parte New York, 256 U.S. 490 (1921) – 304 Ex parte Quirin, 317 U.S. 1 (1942) – 255, 277, 354–55, 429, 431, 562, 569, 586, 603

Table of Cases Ex parte Republic of Peru, 318 U.S. 578 (1943) – 238, 243, 597, 602 Ex parte Young, 209 U.S. 123 (1908) – 466 Examining Board of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976) – 340 F. Hoffmann-La Roche Ltd. v. Empagran, S.A. 542 U.S., 155 (2004) – 1, 3, 458, 533–48, 550, 552–58, 588 Factor v. Laubenheimer, 290 U.S. 276 (1933) – 196–97, 205, 210–14, 217, 298, 425 Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603 (1813) – 14, 589, 591 Farrell v. United States, 336 U.S. 511 (1949) – 326 Federal Republic of Germany v. United States, 526 U.S. 111 (1999) – 328, 338, 453, 457 Fernandez-Roque v. Smith, 622 F. Supp. 887 (N.D. Ga. 1985) – 377 Field v. Clark, 143 U.S. 649 (1892) – 57, 219, 592 Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984) – 369 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) – 366–78, 429–30, 489, 496–98, 598 First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983) – 365–66 First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) – 364, 432 Fitzsimmons v. Newport Insurance Co., 8 U.S. 185 (1808) – 15, 28, 105 Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998) – 372 Fleming v. Page, 50 U.S. 603 (1850) – 38, 43, 47, 271, 596 Florida, The, 101 U.S. 37 (1880) – 105–06 Fok Young Yo v. United States, 185 U.S. 296 (1902) – 197, 204, 206 Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) – 330, 387–89, 423, 438–40, 540, 547, 550, 600 Foley v. Connelie, 435 U.S. 291 (1978) – 340 Fong v. United States, 209 U.S. 453 (1908) – 206 Fong Yue Ting v. United States, 149 U.S. 698 (1893) – 60, 62, 64, 73, 75–76, 154–55, 197, 300–01, 408–09, 436 Ford v. United States, 273 U.S. 593 (1927) – 205, 260, 266, 387 Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D. Cal. 1987) – 371 Foster v. Neilson, 27 U.S. 253 (1829) – 18, 20–23, 55, 73, 76–77, 79, 83–84, 202–03, 303, 444, 460, 590, 594 Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901) – 217

xxiii FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960) – 351 Frelinghuysen v. Key, 110 U.S. 63 (1884) – 61–64, 71, 79, 84, 120, 461–62 Frick v. Webb, 263 U.S. 326 (1923) – 214–15 Frost v. Wenie, 157 U.S. 46 (1895) – 81, 134–37 FTC v. A.P.W. Paper Co., 328 U.S. 193 (1946) – 323–24, 337, 348, 423 Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986) – 377, 566 Geofroy v. Riggs, 133 U.S. 258 (1890) – 56, 60, 64, 66–67, 80, 82, 84, 86, 198, 200–01, 209, 211, 286–87, 310, 589, 591 Georgia v. Brailsford, 2 U.S. 402 (1792) – 45 Gibbons v. Ogden, 22 U.S. 1 (1824) – 42 Gisbert v. Attorney General, 988 F.2d 1437 (5th Cir. 1993) – 377 Glass v. The Sloop Betsey, 3 U.S. 6 (1794) – 19, 24, 37, 45, 235, 584, 594 Goldwater v. Carter, 444 U.S. 996 (1979) – 334 Gonzales v. Carhart, 550 U.S. 124 (2007) – 519 Graham v. Florida, 130 S. Ct. 2011 (2010) – 1, 445, 508, 520, 604 Graham v. Richardson, 403 U.S. 365 (1971) – 340 Great Western Insurance Co. v. United States, 112 U.S. 193 (1884) – 71, 461 Greenspan v. Crosbie, 1976 WL 841 (S.D.N.Y.) – 406 Grin v. Shine, 187 U.S. 181 (1902) – 206 Griswold v. Connecticut, 381 U.S. 479 (1965) – 275, 431 Grogan v. Hiram Walker & Sons, 259 U.S. 80 (1922) – 198 Grutter v. Bollinger, 539 U.S. 306 (2003) – 445, 509 Guaranty Trust Co. v. United States, 304 U.S. 126 (1938) – 196, 216, 238, 249 Guessefeldt v. McGrath, 342 U.S. 308 (1952) – 331 Guitard v. Stoddard, 57 U.S. 494 (1854) – 15 Haitian Centers Council, Inc. v. McNary, 969 F.2d 1350 (2d Cir. 1992) – 390 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) – 67, 180, 323, 429, 447, 451, 561, 563, 567–68, 572–74, 576, 578, 583–84, 587, 593, 600 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) – 447, 561–63, 567–68, 572, 578–80, 583, 587, 600–01, 603 Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919) – 195 Hamilton, The, 207 U.S. 398 (1907) – 232, 255

xxiv Hammer v. Dagenhart, 247 U.S. 251 (1918) – 199 Handel v. Artukovic, 601 F. Supp. 1421 (C.D. Cal. 1985) – 371 Hanna v. Plumer, 380 U.S. 460 (1965) – 294 Hans v. Louisiana, 134 U.S. 1 (1890) – 156, 160–62, 304 Harden v. Fisher, 14 U.S. 300 (1816) – 16 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) – 343, 408–09, 436, 602 Harriman v. ICC, 211 U.S. 407 (1908) – 311 Harrisburg, The, 119 U.S. 199 (1886) – 98 Harrison v. St. Louis & San Francisco Railroad Co., 232 U.S. 318 (1914) – 305 Hart v. United States, 391 U.S. 956 (1968) – 326 Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993) – 381, 391–93, 439, 537, 547–50, 600 Hassard v. United States of Mexico, 61 N.Y.S. 939 (N.Y. App. Div. 1899) – 157 Hauenstein v. Lynham, 100 U.S. 483 (1880) – 66–67, 76, 81–86, 213, 590 Haver v. Yaker, 76 U.S. 32 (1870) – 64, 70, 80, 87, 195 Hays v. United States, 175 U.S. 248 (1899) – 72 Head Money Cases, The, 112 U.S. 580 (1884) – see Edye v. Robertson Heim v. McCall, 239 U.S. 175 (1915) – 215 Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970) – 383–84, 438 Henfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa. 1793) – 26 Hepburn v. Griswold, 75 U.S. 603 (1870) – 153 Herring v. United States, 129 S. Ct. 695 (2009) – 515 Hess v. Pawloski, 274 U.S. 352 (1927) – 236 Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994) – see In re Estate of Marcos Human Rights Litigation Hilton v. Guyot, 159 U.S. 113 (1895) – 95, 98–107, 112–13, 116, 123, 234, 238, 246, 311 Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938) – 247–52, 256, 294, 357, 359, 503, 597 Hines v. Davidowitz, 312 U.S. 52 (1941) – 203, 213, 216 Hirabayashi v. United States, 320 U.S. 81 (1943) – 277–78 Hirota v. MacArthur, 338 U.S. 197 (1948) – 447, 586 Hodgson & Thompson v. Bowerbank, 9 U.S. 303 (1810) – 368 Holden v. Hardy, 169 U.S. 366 (1898) – 273

Table of Cases Holden v. Joy, 84 U.S. 211 (1872) – 59, 61, 67, 72, 75 Holmes v. Jennison, 39 U.S. 540 (1840) – 42 Holmes v. United States, 391 U.S. 936 (1968) – 326 Home Insurance Co. v. Dick, 281 U.S. 397 (1930) – 236 Hong v. United States, 193 U.S. 517 (1904) – 206 Hopkirk v. Bell, 7 U.S. 454 (1806) – 458 Hopkirk v. Bell, 8 U.S. 164 (1807) – 458 Horner v. United States, 143 U.S. 570 (1892) – 61, 73, 134, 140–41 Hornsby v. United States, 77 U.S. 224 (1870) – 68, 72 Hovey v. Elliott, 167 U.S. 409 (1897) – 478 Hoyt v. Sprague, 103 U.S. 613 (1881) – 100 Hudson v. Guestier, 10 U.S. 281 (1810) – 25 Humphrey’s Executor v. United States, 295 U.S. 602 (1935) – 293 Huntington v. Attrill, 146 U.S. 657 (1892) – 101, 104, 117–19, 303 IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) – 367 Illinois v. City of Milwaukee, 406 U.S. 91 (1972) – 104, 369, 375 In re Baiz, 135 U.S. 403 (1890) – 130 In re Cooper, 143 U.S. 472 (1892) – 126–28, 141, 163 In re Debs, 158 U.S. 564 (1895) – 304 In re Doe, 860 F.2d 40 (2d Cir. 1988) – 372 In re Estate of Marcos Human Rights Litigation (Hilao v. Marcos), 25 F.3d 1467 (9th Cir. 1994) – 371, 497 In re Griffiths, 413 U.S. 717 (1973) – 340 In re Luis Oteiza y Cortes, 136 U.S. 330 (1890) – 71 In re Microsoft Corp. Antitrust Litigation, 127 F. Supp. 2d 702 (D. Md. 2001) – 537 In re Neagle, 135 U.S. 1 (1890) – 304 In re Ross, 140 U.S. 453 (1891) – see Ross v. McIntyre In re South African Apartheid Litigation, 617 F. Supp. 2d 228 (E.D.N.Y. 2009) – 492 In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal. 1880) – 69 In re Yamashita, 327 U.S. 1 (1946) – 322–24, 328–30, 338, 354–55, 372, 422, 429, 431, 569, 574, 586 Incres Steamship Co. v. International Maritime Workers Union, 372 U.S. 24 (1963) – 384 INS v. Abudu, 485 U.S. 94 (1988) – 396 INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) – 329, 338, 396–97, 440

Table of Cases INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) – 329, 338, 390, 394–97, 439–40 INS v. Doherty, 502 U.S. 314 (1992) – 329 INS v. Stanisic, 395 U.S. 62 (1969) – 329 INS v. Stevic, 467 U.S. 407 (1984) – 329, 338 Insular Cases, The – see De Lima v. Bidwell; Downes v. Bidwell; Dorr v. United States; Rassmussen v. United States Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) – 446, 549, 551 International Longshoremen’s Local v. Ariadne Shipping Co., 397 U.S. 195 (1970) – 384, 386 International Shoe Co. v. Washington, 326 U.S. 310 (1945) – 236, 406–08, 503 Iowa v. Illinois, 147 U.S. 1 (1893) – 104–06, 109, 119, 230, 358 Itel Containers International Corp. v. Huddleston, 507 U.S. 60 (1993) – 341 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928) – 467 Jama v. Esmor Correctional Services, Inc., 2008 WL 724337 (D.N.J.) – 377 Jama v. INS 22 F. Supp., 2d 353 (D.N.J. 1998) – 376–77 Jama v. INS 343 F. Supp., 2d 338 (D.N.J. 2004) – 376–77 Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979) – 341, 436 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221 (1986) – 329 Jecker, Torre & Co. v. Montgomery, 59 U.S. 110 (1856) – 25 John G. Stevens, The, 170 U.S. 113 (1898) – 115, 254 Johnson v. Browne, 205 U.S. 309 (1907) – 206, 208, 218, 259, 599 Johnson v. Eisentrager, 339 U.S. 763 (1950) – 324–27, 338, 355, 422, 431, 562–63, 568–72, 579, 586, 592, 603 Johnson v. Louisiana, 406 U.S. 399 (1972) – 473 Johnson v. M’Intosh, 21 U.S. 543 (1823) – 28, 47, 65 Johnston v. Compagnie Generale Transatlantique, 242 N.Y. 121 (1926) – 234 Jones v. McMasters, 61 U.S. 8 (1858) – 28 Jones v. Meehan, 175 U.S. 1 (1899) – 59, 61, 67, 75, 82–83, 134–37, 590 Jones v. United States, 137 U.S. 202 (1890) – 120, 283–84 Jordan v. Tashiro, 278 U.S. 123 (1928) – 212–14 Joseph, The, 12 U.S. 451 (1814) – 33, 46 Julia, The, 12 U.S. 181 (1814) – 33

xxv Juilliard v. Greenman, 110 U.S. 421 (1884) – 153, 184–85, 301, 304 Juragua Iron Co. v. United States, 212 U.S. 297 (1909) – 235, 275–76, 596, 603 K Mart Corp. v. Cartier, 486 U.S. 281 (1988) – 330 Kadic v. Karadˇzić, 70 F.3d 232 (2d Cir. 1995) – 372, 375 Kane v. New Jersey, 242 U.S. 160 (1916) – 236 Kansas v. Colorado, 206 U.S. 46 (1907) – 230–31, 233, 237, 239, 248, 250, 256, 294, 305, 503 Kansas v. Colorado, 185 U.S. 125 (1902) – 230 Kansas Indians, The, 72 U.S. 737 (1867) – 58, 61, 67, 81–82, 86–87, 137 Karnuth v. United States, 279 U.S. 231 (1929) – 196, 208, 259 Keene v. Clark’s Heirs, 35 U.S. 291 (1836) – 15 Kelly v. Hedden, 124 U.S. 196 (1887) – 73 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) – 343, 411–12, 507 Kennett v. Chambers, 55 U.S. 38 (1852) – 14–15, 28, 35, 591 Ker v. Illinois, 119 U.S. 436 (1886) – 61, 70, 82–83, 87, 117–19 King v. Delaware Insurance Co., 10 U.S. 71 (1810) – 28 Kinkead v. United States, 150 U.S. 483 (1893) – 58, 80, 82, 84, 213 Kinsella v. Krueger, 351 U.S. 470 (1956) – 325, 344–45, 427 Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) – 325, 344–45, 427 Kirkman v. Hamilton, 21 U.S. 20 (1832) – 30 Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) – 581 Klaxon Co. v. Stentor Electric Manufacturing. Co., 313 U.S. 487 (1941) – 245–46, 253–55, 378, 503 Kline v. Kaneko, 685 F. Supp. 386 (S.D.N.Y. 1988) – 406 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) – 233, 597 Knight v. Florida, 528 U.S. 990 (1999) – 346 Knight v. U.S. Land Association, 142 U.S. 161 (1891) – 68 Kolovrat v. Oregon, 366 U.S. 187 (1961) – 217, 336, 340–41, 425, 427, 572, 594 Korematsu v. United States, 323 U.S. 214 (1944) – 277–78, 583 Kruman v. Christie’s Int’l PLC, 129 F. Supp., 2d 620 (S.D.N.Y. 2001) – 537 Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910) – 228–29

xxvi La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899) – 60, 64, 71, 73–74, 79, 120, 461–62 La Republique Francaise v. Saratoga Vichy Spring Co., 191 U.S. 427 (1903) – 205 Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994) – 372 LaGrand (Ger. v. U.S.), 1999 I.C.J. 9 (Mar. 3) – 453 LaGrand (Ger. v. U.S.), 2001 I.C.J. 466 (June 27) – 455, 457 Lake Carriers’ Association v. MacMullan, 406 U.S. 498 (1972) – 351 Lamar v. Browne, 92 U.S. 187 (1876) – 131 Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1889) – 300 Lattimer v. Poteet, 39 U.S. 4 (1840) – 15 Lau Ow Bew v. United States, 144 U.S. 47 (1892) – 69, 74, 81 Lauritzen v. Larsen, 345 U.S. 571 (1953) – 133, 381–87, 392–93, 438, 598, 600 Lawrence v. Texas, 539 U.S. 558 (2003) – 1, 3, 445, 492, 495, 507–12, 516, 518, 521–23, 525, 588 Le Louis, 165 Eng. Rep. 1464 (1817) – 36, 536–37, 543 Leavenworth, Lawrence, & Galveston Railroad Co. v. United States, 92 U.S. 733 (1876) – 74, 134–37 Lee Gon Yung v. United States, 185 U.S. 306 (1902) – 206 Lee Lung v. Patterson, 186 U.S. 168 (1902) – 206 Lee v. Madigan, 358 U.S. 228 (1959) – 331 Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007) – 557 Legal Tender Cases, 79 U.S. 457 (1871) – 152–53, 184, 283–84, 303–04, 601 Lem Moon Sing v. United States, 158 U.S. 538 (1895) – 134–35, 141 Leroux v. Brown, 138 Eng. Rep. 1119 (C.P. 1852) – 536 Lessee of Pollard’s Heirs v. Kibbe, 39 U.S. 353 (1840) – 16 Libby v. Clark, 118 U.S. 250 (1886) – 82 Little v. Barreme, 6 U.S. 170 (1804) – 585 Liverpool & Great Western Steam Co. v. Phenix Insurance. Co., 129 U.S. 397 (1889) – 97, 110, 115 Lochner v. New York, 198 U.S. 45 (1905) – 229, 273 Loewen Group, Inc. v. United States, 7 ICSID Rep. 442 (2003) – 554 Lottawanna, The, 88 U.S. 558 (1874) – 95–96, 99–100, 106, 114–16, 118–120, 123, 232

Table of Cases Lotus, The (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 – 260, 552 Loughborough v. Blake, 18 U.S. 317 (1820) – 271 Louisiana v. Mississippi, 466 U.S. 96 (1984) – 358 Luckenbach Steamship Co. v. United States, 280 U.S. 173 (1930) – 210 Ludwig v. Western Union Telegraph Co., 216 U.S. 146 (1910) – 305 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) – 388 Mackenzie v. Hare, 239 U.S. 299 (1915) – 302 MacLeod v. United States, 229 U.S. 416 (1913) – 242, 257–58, 260, 596, 599 Maggie Hammond, The, 76 U.S. 435 (1870) – 94, 106 Main, The v. Williams, 152 U.S. 122 (1894) – 130 Maiorano v. Baltimore & Ohio Railroad Co., 213 U.S. 268 (1909) – 203, 215 Malek Adhel, The, 43 U.S. 410 (1844) – 25 Mali v. Keeper of the Common Jail (Wildenhus’s Case), 120 U.S. 1 (1887) – 64, 70, 79–80, 86–87, 100–02, 104–06, 110, 123, 129, 385 Marbury v. Madison, 5 U.S. 137 (1803) – 83, 168, 469 Marianna Flora, The, 24 U.S. 1 (1826) – 25, 32, 584 Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) – 571 Martin v. Waddell’s Lessee, 41 U.S. 367 (1842) – 29 Martinez v. City of Los Angeles, 141 F.3d 1373 (9th Cir. 1998) – 377 Mary Ford, The, 3 U.S. 188 (1796) – 25 Maryland v. West Virginia, 217 U.S. 1 (1910) – 231, 239 Mason v. The Ship Blaireau, 6 U.S. 240 (1804) – 25 Massachusetts v. Laird, 400 U.S. 886 (1970) – 326 Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) – 351 Matter of McMullen, 19 I & N Dec. 90 (B.I.A. 1984) – 396 Matthews v. McStea, 91 U.S. 7 (1875) – 117 Maul v. United States, 274 U.S. 501 (1927) – 203 Maximov v. United States, 373 U.S. 49 (1963) – 328, 338 McCulloch v. Maryland, 17 U.S. 316 (1819) – 162, 280, 283, 300, 303, 601

Table of Cases McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963) – 329, 331, 384–89, 392, 398, 438, 600 McDonogh v. Millaudon, 44 U.S. 693 (1845) – 20 McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485 (D.C. Cir. 2008) – 464 Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004) – 454 Medellin v. Dretke, 544 U.S. 660 (2005) – 328, 454 Medellin v. Dretke, 543 U.S. 1032 (2004) – 443–44 Medellin v. Texas, 552 U.S. 491 (2008) – 1, 3, 67, 203, 217, 288, 328, 443–44, 451–65, 468–78, 566, 587, 594 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) – 216 Menard’s Heirs v. Massey, 49 U.S. 293 (1850) – 20 Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007) – 446, 536, 540, 548 Mighell v. Sultan of Jahore, 1 Q.B. 149 (Eng. 1894) – 120 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) – 455, 496 Miller v. The Ship Resolution, 2 U.S. 1 (Fed. Ct. App. 1781) – 37 Miller v. United States, 78 U.S. 268 (1870) – 145–47, 182–83, 278, 565, 584, 603 Milliken v. Pratt, 125 Mass. 374 (1878) – 262 Ministry of Defense & Support for the Armed Forces of the Islamic Republic of Iran v. Elahi, 129 S. Ct. 1732 (2009) – 446 Ministry of Defense & Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U.S. 450 (2006) – 446 Missouri v. Holland, 252 U.S. 416 (1920) – 192–93, 199–202, 286–87, 292, 310, 466, 591 Missouri v. Illinois, 200 U.S. 496 (1906) – 230, 232, 305 Missouri v. Iowa, 48 U.S. 660 (1849) – 31 Mitchell v. Furman, 180 U.S. 420 (1901) – 203, 215 Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1969) – 350 Mitchell v. United States, 386 U.S. 972 (1967) – 326 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) – 337, 350 Montoya v. United States, 180 U.S. 261 (1985) – 312

xxvii Moodie v. The Ship Phoebe Anne, 3 U.S. 319 (1796) – 15 Moore v. Steinbach, 127 U.S. 70 (1888) – 72 Mora v. McNamara, 389 U.S. 934 (1967) – 326 Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010) – 1, 445, 533, 548, 550–51, 554–55 Morton v. Mancari, 417 U.S. 535 (1974) – 306 Moser v. United States, 341 U.S. 41 (1951) – 338, 342–43 Moses v. National Bank of Lawrence County, 149 U.S. 298 (1893) – 234 Mossman v. Higginson, 4 U.S. 12 (1800) – 368 Muller v. Oregon, 208 U.S. 412 (1908) – 272–73, 284, 297 Munaf v. Geren, 553 U.S. 674 (2008) – 447, 512 Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804) – 32, 37–40, 44, 46, 49–50, 74, 79, 117, 124, 129–41, 161, 175–76, 208–09, 259, 299, 329, 380–401, 414, 434–41, 455, 458, 484–86, 527–28, 534–37, 545, 547–48, 551–52, 584, 590, 595, 598–600 Myers v. United States, 272 U.S. 52 (1926) – 293 Nagle v. Loi Ha, 275 U.S. 475 (1928) – 207 Nebraska v. Iowa, 143 U.S. 356 (1892) – 359 Neely v. Henkel, 180 U.S. 109 (1901) – 200, 270, 286, 310, 591 Nereide, The, 13 U.S. 388 (1815) – 33, 35, 46, 115, 369, 574, 585, 596, 598 Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) – 306 New England Mutual Marine Insurance Co. v. Dunham, 78 U.S. 1 (1871) – 94–95, 106–07 New Hampshire v. Louisiana, 108 U.S. 76 (1883) – 104, 106, 119 New Jersey v. Delaware, 291 U.S. 361 (1934) – 239, 494 New Jersey v. New York, 238 U.S. 336 (1931) – 231 New Jersey v. New York, 30 U.S. 284 (1831) – 31 New Jersey v. New York, 523 U.S. 767 (1998) – 359, 430 New Orleans v. De Armas, 34 U.S. 224 (1835) – 15 New York Central Railroad Co. v. Chisholm, 268 U.S. 29 (1925) – 263, 600 New York Central Railroad Co. v. Winfield, 244 U.S. 147 (1917) – 293 New York Indians v. United States, 170 U.S. 1 (1898) – 61, 72, 74, 82, 86 New York Life Insurance Co. v. Dodge, 246 U.S. 357 (1918) – 236, 597

xxviii New York Life Insurance Co. v. Head, 234 U.S. 149 (1914) – 236, 305 New York Life Insurance Co. v. Hendren, 92 U.S. 286 (1876) – 115, 117–18, 233, 251, 595 Nielson v. Johnson, 279 U.S. 47 (1929) – 203, 210, 212, 214, 216–17, 591 Nishimura Ekiu v. United States, 142 U.S. 651 (1892) – 154, 184–85, 301, 312, 601 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) – 401 North American Commercial Co. v. United States, 171 U.S. 110 (1898) – 58 Northern Pacific Railway Co. v. Dixon, 194 U.S. 338 (1904) – 229 Northern Securities Co. v. United States, 193 U.S. 197 (1904) – 261 Norwich Co. v. Wright, 80 U.S. 104 (1872) – 130 Nyquist v. Mauclet, 432 U.S. 1 (1977) – 340 O’Connor v. United States, 479 U.S. 27 (1986) – 328, 337–38 O’Reilly de Camara v. Brooke, 142 F. 858 (S.D.N.Y. 1906) – 241–42, 253 O’Reilly de Camara v. Brooke, 209 U.S. 45 (1908) – 241–42, 253 Oetjen v. Central Leather Co., 246 U.S. 297 (1918) – 196, 237, 239 Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927) – 215 Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971) – 351 Oldfield v. Marriott, 51 U.S. 146 (1851) – 19, 59 Oliver American Trading Co. v. United States of Mexico, 264 U.S. 440 (1924) – 234, 244 Olympic Airways v. Husain, 540 U.S. 644 (2004) – 444 Ornelas v. Ruiz, 161 U.S. 502 (1896) – 71, 83 Osborn v. Bank of the United States, 22 U.S. 738 (1824) – 404 Osceola, The, 189 U.S. 158 (1903) – 239 Otis v. Parker, 187 U.S. 606 (1908) – 311 Owings v. Norwood’s Lessee, 9 U.S. 344 (1809) – 14, 50 Oyama v. California, 332 U.S. 633 (1948) – 339, 426 Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493 (1939) – 236 Palko v. Connecticut, 302 U.S. 319 (1937) – 274–75, 284 Pam-to-Pee v. United States, 148 U.S. 691 (1893) – 72 Panama Canal Zone v. Grace Line, Inc., 356 U.S. 309 (1958) – 325

Table of Cases Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) – 197 Panama, The, 176 U.S. 535 (1900) – 91, 104, 107, 111, 122 Paquete Habana, The, 175 U.S. 677 (1900) – 90–91, 98–99, 103–13, 116–17, 120–23, 132, 171–73, 175–76, 180, 226–30, 237–42, 246–47, 251–56, 307, 365–70, 373–74, 377, 481, 483–84, 489, 491, 497, 564, 569, 574, 585–86, 595–96 Pasquantino v. United States, 544 U.S. 349 (2005) – 445, 548–51 Passenger Cases, The, 48 U.S. 283 (1849) – 14, 42–43, 48, 59 Patsone v. Pennsylvania, 232 U.S. 138 (1914) – 205, 215 Penhallow v. Doane’s Administrators, 3 U.S. 54 (1795) – 24 Pennock v. Commisioners, 103 U.S. 44 (1881) – 87 Pennoyer v. Neff, 95 U.S. 714 (1878) – 149, 151–52, 155, 161, 163, 236, 406–08, 595, 604 Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917) – 236 Pennsylvania Railroad Co. v. Hughes, 191 U.S. 477 (1903) – 228, 251 Perez v. Brownell, 356 U.S. 44 (1958) – 343–44, 409, 411–12, 435–36, 602 Perkins v. Elg, 307 U.S. 325 (1939) – 205, 210–11, 218, 589 Permanent Mission of India v. City of New York, 551 U.S. 193 (2007) – 446 Peterhoff, The, 72 U.S. 28 (1867) – 80, 97, 104–05, 110–11, 574 Petersen v. Iowa ex rel. State Treasurer, 245 U.S. 170 (1917) – 205, 211 Pfizer, Inc. v. Government of India, 434 U.S. 308 (1978) – 331, 423, 553 Phillips v. Eyre, [1870] L.R. 6 Q.B. 1 (U.K.) – 262 Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138 (1934) – 207–10, 259, 590, 599 Pinkerton v. Ledoux, 129 U.S. 346 (1889) – 72 Place v. Norwich & New York Transportation Co., 118 U.S. 468 (1886) – 106, 109, 116, 130 Plessy v. Ferguson, 163 U.S. 537 (1896) – 305 Ponce v. Roman Catholic Apostolic Church, 210 U.S. 296 (1908) – 205, 236 Poole v. Fleeger’s Lessee, 36 U.S. 185 (1837) – 15, 41 Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2007) – 446 Powers v. Comly, 101 U.S. 789 (1879) – 61, 74, 83

Table of Cases Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999) – 306 Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) – 492, 498 Prigg v. Pennsylvania, 41 U.S. 539 (1842) – 16, 19, 49 Printz v. United States, 521 U.S. 898, 976 (1997) – 514 Prize Cases, The, 67 U.S. 635 (1863) – see Brig Amy Warwick, The Pullman Co. v. Kansas, 216 U.S. 56 (1910) – 305 Quality King Distributors, Inc. v. L’Anza Research International, Inc., 523 U.S. 135 (1998) – 331 Queen, The v. Jameson (1896) 2 Q.B. – 425 382 Rabang v. Boyd, 353 U.S. 427 (1957) – 343 Rainey v. United States, 232 U.S. 310 (1914) – 207 Ralli v. Troop, 157 U.S. 386 (1895) – 98, 106 Rapid, The, 12 U.S. 155 (1814) – 33, 46 Rassmussen v. United States, 197 U.S. 516 (1905) – 296 Rasul v. Bush, 542 U.S. 466 (2004) – 447, 561–63, 567–71, 578, 580, 583, 587 Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) – 376 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) – 341 Reichart v. Felps, 73 U.S. 160 (1868) – 59, 75 Reid v. Covert, 354 U.S. 1 (1957) – 325, 344–46, 419, 427, 468, 580, 602 Renard, The, 165 Eng. Rep. 51 (Adm. 1778) – 108 Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992) – 404–05 Republic of Austria v. Altmann, 541 U.S. 677 (2004) – 446–47, 552 Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009) – 446 Republic of Mexico v. Hoffman, 324 U.S. 30 (1945) – 238, 243, 597 Republic of Philippines v. Marcos, 665 F. Supp. 793 (N.D. Cal. 1987) – 406 Republic of Philippines v. Pimentel, 553 U.S. 851 (2008) – 446 Request for Interpretation of the Judgment of 31 March 2004 in Avena and Other Mexican Nationals (Mex. v. U.S.), 2008 I.C.J. 311 (July 16) – 460

xxix Request for Interpretation of the Judgment of 31 March 2004 in Avena and Other Mexican Nationals (Mex. v. U.S.), 2009 I.C.J. 139 (January 19) – 460 Respublica v. De Longchamps, 1 U.S. 11 (1784) – 11, 369 Reynolds v. United States, 98 U.S. 145 (1879) – 311 Rhinelander v. Insurance Co. of Pennsylvania, 8 U.S. 29 (1807) – 28 Rhode Island v. Massachusetts, 37 U.S. 657 (1838) – 22, 31, 230, 430, 595 Ribas y Hijo v. United States, 194 U.S. 315 (1904) – 206–07 Ricaud v. American Metal Co., 246 U.S. 304 (1918) – 237, 239 Rice v. Sante Fe Elevator Corp., 331 U.S. 218 (1947) – 216 Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955) – 339 Rios v. Marshall, 530 F. Supp. 351 (S.D.N.Y. 1981) – 406 Roach v. United States, 406 U.S. 935 (1972) – 327 Roanoke, The, 189 U.S. 185 (1903) – 232 Robert C. Herd & Co. v. Krawill, 359 U.S. 297 (1959) – 349 Robertson v. Baldwin, 165 U.S. 275 (1897) – 106–07, 109 Rocca v. Thompson, 223 U.S. 317 (1912) – 211–12 Rochin v. California, 342 U.S. 165 (1952) – 431 Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980) – 377 Rodriguez-Fernandez v. Wilkinson, 654 F. 2d 1382 (10th Cir. 1981) – 377 Romero v. International Terminal Operating Co., 358 U.S. 354 (1959) – 383, 392, 438 Roper v. Simmons, 543 U.S. 551 (2005) – 1, 3, 439, 445, 507–16, 518, 520–29, 588 Rose v. Himely, 8 U.S. 241 (1808) – 25, 35, 38 Ross v. McIntyre (In re Ross), 140 U.S. 453 (1891) – 56, 61, 66, 85, 128–29, 149–50, 161, 217, 271, 297, 425, 602 Roth v. United States, 354 U.S. 476 (1957) – 410 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) – 350 Rutgers v. Waddington (N.Y. Mayor’s Ct. 1784) – 10–11, 37, 185 Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) – 328–30, 336, 338, 381, 387–88, 390–92, 421–23, 439–40

xxx Samantar v. Yousuf, 130 S. Ct. 2278 (2010) – 376, 446 Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) – 376 Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) – 1, 3, 67, 70, 83, 328, 429, 443–44, 451–65, 468–78, 587, 594 Sandberg v. McDonald, 248 U.S. 185 (1918) – 263, 294, 600 Santissima Trinidad, The, 20 U.S. 283 (1822) – 25, 40, 47, 94, 403 Santovincenzo v. Egan, 284 U.S. 30 (1931) – 198, 209–13 Sapphire, The, 78 U.S. 164 (1871) – 97, 100 Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) – 350 Schooner Exchange, The v. McFaddon, 11 U.S. 116 (1812) – 32, 37, 39–40, 46, 125, 156–57, 260, 447 Schneider v. Rusk, 377 U.S. 163 (1964) – 343–44, 411 Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981) – 325, 347 Scotia, The, 81 U.S. 170 (1872) – 97–98, 104, 113, 123, 374, 595–96 Scott v. McNeal, 154 U.S. 34 (1894) – 152 Scotland, The, 105 U.S. 24 (1882) – 106–07, 116 Second Russian Insurance Co. v. Miller, 268 U.S. 552 (1925) – 237–38 Sei Fujii v. California, 217 P.2d 481 (Cal. Ct. App. 1950) – 426 Sei Fujii v. State, 242 P.2d 617 (Cal. 1952) – 426, 428 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) – 473 Shaffer v. Heitner, 433 U.S. 186 (1977) – 407–08 Shanks v. Dupont, 28 U.S. 242 (1830) – 590 Sherer v. Sherer, 334 U.S. 343 (1948) – 348 Siren, The, 80 U.S. 389 (1871) – 114 Skiriotes v. Florida, 313 U.S. 69 (1941) – 255, 293 Slater v. Mexican National Railroad Co., 194 U.S. 120 (1904) – 262 Slidell v. Grandjean, 111 U.S. 412 (1883) – 72 Small v. United States, 544 U.S. 385 (2005) – 445, 540, 547–51 Smith v. Stevens, 77 U.S. 321 (1870) – 134–37 Smith v. United States, 151 U.S. 50 (1894) – 74 Smith v. United States, 507 U.S. 197 (1993) – 331, 388–90, 439–40, 540 Société Nationale Industrielle Aérospatiale v. U.S. District Court, 482 U.S. 522 (1987) – 336–37, 347

Table of Cases Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) – 1, 3, 357, 359, 366–67, 373, 375, 429, 434, 444–45, 481–504, 588, 598–99 Soulard v. United States, 29 U.S. 511 (1830) – 16 Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) – 119, 231–33, 237, 239, 244–56, 289, 293, 305, 489, 503, 597 Southern Railway Co. v. Reid, 222 U.S. 424 (1912) – 305 Spalding v. Chandler, 160 U.S. 394 (1896) – 82 Sparenburgh v. Bannatyne, 126 Eng. Rep. 837 (1797) – 569–70 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005) – 446, 537, 549, 551–52 Spies v. Illinois, 123 U.S. 131 (1887) – 70–71 Sprott v. United States, 87 U.S. 459 (1874) – 104, 106 St. Clair v. United States, 154 U.S. 134 (1894) – 125 St. Lawrence, The, 66 U.S. 522 (1861) – 118 Standard Dredging Corp. v. Murphy, 319 U.S. 306 (1943) – 248 Stanford v. Kentucky, 492 U.S. 361 (1989) – 346, 413–14, 437 State Oil Co. v. Khan, 522 U.S. 3 (1997) – 557 Steel Seizure, 343 U.S. 579 (1952) – see Youngstown Sheet & Tube Co. v. Sawyer Steele v. Bulova Watch Co., 344 U.S. 280 (1952) – 330, 388, 423, 600 Stephens v. Cherokee Nation, 174 U.S. 445 (1899) – 73 Stoddard v. Chambers, 43 U.S. 284 (1844) – 15 Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008) – 555 Strother v. Lucas, 37 U.S. 410 (1838) – 16, 20 Sugarman v. Dougall, 413 U.S. 634 (1973) – 340 Sullivan v. Kidd, 254 U.S. 433 (1921) – 202, 208–12, 217 Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982) – 217, 336, 338, 348, 391, 425, 572, 593 Summa Corp. v. California, 466 U.S. 198 (1984) – 349 Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531 (1915) – 305 Swift v. Tyson, 41 U.S. 1 (1842) – 27–30, 48, 114, 227–35, 243–51, 253, 503, 595–97 Talbot v. Jansen, 3 U.S. 133 (1795) – 15, 23–25, 37, 584, 594 Talbot v. Seeman, 5 U.S. 1 (1801) – 37, 46, 535 Taylor v. Morton, 23 F. Cas. 784 (C.C. Mass. 1855) – 18–19, 73–74, 601 Taylor v. Morton, 67 U.S. 481 (1863) – 71

Table of Cases Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) – 369–72, 375, 497 Terlinden v. Ames, 184 U.S. 270 (1902) – 196, 202–03, 205 Terrace v. Thompson, 263 U.S. 197 (1923) – 214–15 Texaco Inc. v. Dagher, 547 U.S. 1 (2006) – 557 Texas v. Louisiana, 410 U.S. 702 (1973) – 349, 358 Texas v. Louisiana, 426 U.S. 465 (1976) – 349 Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191 (1815) – 33, 36, 46, 114 Thomas v. Gay, 169 U.S. 264 (1898) – 60, 73, 76, 134–38 Thompson v. Oklahoma, 487 U.S. 815 (1988) – 346, 413–14, 437, 526 Thomsen v. Cayser, 243 U.S. 66 (1917) – 263 Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976) – 391–92 Todok v. Union State Bank of Harvard, Nebraska, 281 U.S. 449 (1930) – 212–14 Toll v. Moreno, 458 U.S. 1 (1982) – 341 Torres v. Mullin, 540 U.S. 1035 (2003) – 328 Torres v. State, 120 P.3d 1184 (Okla. 2005) – 454 Townsend v. Greeley, 72 U.S. 326 (1867) – 72 Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984) – 337, 347, 393, 399 Transportes Maritimos do Estado v. Almeida, 265 U.S. 104 (1924) – 234 Trop v. Dulles, 356 U.S. 86 (1958) – 343, 410–12, 435, 513, 521, 604 Truax v. Raich, 239 U.S. 33 (1915) – 339 Tucker v. Alexandroff, 183 U.S. 424 (1902) – 197, 205, 210–13, 219, 224, 240–41, 590 Twining v. New Jersey, 211 U.S. 78 (1908) – 273–75, 284, 297 Underhill v. Hernandez, 168 U.S. 250 (1897) – 119–20, 157–58, 237, 503, 595 United States v. Acosta, 42 U.S. 24 (1843) – 17 United States v. Alaska, 422 U.S. 184 (1975) – 349 United States v. Alaska, 503 U.S. 569 (1992) – 349 United States v. Alaska, 521 U.S. 1 (1980) – 349 United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) – 265–67, 269, 295, 391–93, 419, 438–39, 539, 549 United States v. Alvarez-Machain, 504 U.S. 655 (1992) – 1, 253, 327–28, 338, 357, 359, 366, 373, 421–23, 429, 434, 444, 481–86, 488, 491, 493, 494, 496, 499, 588, 598

xxxi United States v. American Sugar Refining Co., 202 U.S. 563 (1906) – 195 United States v. American Tobacco Co., 221 U.S. 106 (1911) – 263 United States v. Arjona, 120 U.S. 479 (1887) – 147–48, 516, 597 United States v. Arredondo, 31 U.S. 691 (1832) – 17, 34, 195 United States v. Auguisola, 68 U.S. 352 (1864) – 61, 68, 72, 82 United States v. Belmont, 301 U.S. 324 (1937) – 192, 218, 220–23, 249–50, 256, 287, 293, 300, 504, 592, 602 United States v. Bowman, 260 U.S. 94 (1922) – 267–69 United States v. California, 332 U.S. 19 (1947) – 302, 358 United States v. California, 381 U.S. 139 (1965) – 302, 349, 358 United States v. California, 382 U.S. 448 (1966) – 302 United States v. California, 436 U.S. 32 (1978) – 302 United States v. California, 447 U.S. 1 (1980) – 302 United States v. Castillero, 67 U.S. 17 (1863) – 90 United States v. Chaves, 159 U.S. 452 (1895) – 68, 72, 80 United States v. Choctaw Nation, 179 U.S. 494 (1900) – 60, 72, 82, 90 United States v. Coolidge, 14 U.S. 415 (1816) – 27 United States v. Curtiss-Wright Export Corp., 14 F. Supp. 230 (S.D.N.Y. 1936) – 279 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) – 192, 195, 197–98, 220–21, 242–43, 249–50, 252, 256, 279–84, 290, 293, 296, 300–02, 305–06, 409, 436, 504, 596, 601 United States v. d’Auterive, 51 U.S. 609 (1851) – 16 United States v. Diekelman, 92 U.S. 520 (1876) – 101 United States v. Dion, 476 U.S. 734 (1986) – 325 United States v. Flores, 289 U.S. 137 (1933) – 268 United States v. Florida, 425 U.S. 791(1975) – 349 United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491 (1883) – 74, 134–37 United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876) – 64, 76 United States v. Fullard-Leo, 331 U.S. 256 (1947) – 349

xxxii United States v. Furlong, 18 U.S. 184 (1820) – 39 United States v. Green, 185 U.S. 256 (1902) – 206 United States v. Gue Lim, 176 U.S. 459 (1900) – 61, 69, 74, 81, 134, 155, 590 United States v. Guillem, 52 U.S. 47 (1851) – 25 United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953) – 333 United States v. Guy W. Capps, Inc., 348 U.S. 296 (1955) – 333, 424 United States v. Hathaway, 71 U.S. 404 (1867) – 70, 83–84 United States v. Hudson & Goodwin, 11 U.S. 32 (1812) – 27 United States v. Jones, 109 U.S. 513 (1883) – 153–54, 601 United States v. Joseph, 94 U.S. 614 (1877) – 72 United States v. Jung Ah Lung, 124 U.S. 621 (1888) – 59, 70, 78 United States v. Kagama, 118 U.S. 375 (1886) – 60, 184–85 United States v. Klein, 80 U.S. 128 (1872) – 183 United States v. Klintock, 18 U.S. 144 (1820) – 39 United States v. The La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822) – 25, 35–37, 92, 170–71, 374, 488 United States v. Lane, 75 U.S. 185 (1869) – 131 United States v. Lee, 106 U.S. 196 (1882) – 156, 158–62, 301 United States v. Locke, 529 U.S. 89 (2000) – 342 United States v. Louisiana, 363 U.S. 1 (1960) – 337, 349 United States v. Louisiana, 394 U.S. 11 (1969) – 337, 349 United States v. Louisiana, 446 U.S. 253 (1980) – 349 United States v. Louisiana, 394 U.S. 1 (1969) – 349 United States v. Louisiana, 470 U.S. 93 (1985) – 337, 349, 358 United States v. Louisiana, 389 U.S. 155 (1967) – 349 United States v. Louisiana, 485 U.S. 88 (1988) – 349 United States v. Lynde, 78 U.S. 632 (1871) – 84 United States v. Macintosh, 283 U.S. 605 (1931) – 276, 278, 311 United States v. Maine, 469 U.S. 504 (1985) – 349 United States v. Maine, 475 U.S. 89 (1986) – 337, 349, 358 United States v. McBratney, 104 U.S. 621(1882) – 73–74, 87, 134–36, 138

Table of Cases United States v. McCullagh, 221 F. 288 (D. Kan. 1915) – 199 United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) – 557 United States v. Minnesota, 270 U.S. 181 (1926) – 195–96, 198 United States v. Moreno, 68 U.S. 400 (1864) – 68, 72, 81 United States v. Navarre, 173 U.S. 77 (1899) – 61, 72, 84 United States v. Nord Deutscher Lloyd, 223 U.S. 512 (1912) – 263 United States v. O’Donnell, 303 U.S. 501 (1938) – 208, 217, 259 United States v. Old Settlers, 148 U.S. 427 (1893) – 72 United States v. Pacific & Arctic Railway Co., 228 U.S. 87 (1913) – 263 United States v. Padelford, 76 U.S. 531 (1870) – 131–32, 183, 585, 599 United States v. Palmer, 16 U.S. 610 (1818) – 39 United States v. The Paquete Habana, 189 U.S. 453 (1903) – 232, 241 United States v. Payne, 264 U.S. 446 (1924) – 208, 259 United States v. Percheman, 32 U.S. 51 (1833) – 16, 23, 28, 59, 460 United States v. Peters, 3 U.S. 121 (1795) – 15, 24, 37 United States v. Pink, 315 U.S. 203 (1942) – 192, 216, 218, 221–23, 249–50, 287, 306, 424, 592 United States v. Quimby, 71 U.S. 408 (1867) – 70, 84 United States v. Rauscher, 119 U.S. 407 (1886) – 60–61, 68, 76, 79–84, 86, 104–06, 109–110, 209, 240, 589, 591 United States v. Reynes, 50 U.S. 127 (1850) – 20 United States v. Rice, 17 U.S. 246 (1819) – 38 United States v. Ritchie, 58 U.S. 525 (1855) – 34 United States v. Rodgers, 150 U.S. 249 (1893) – 104–06, 125–27 United States v. Rogers, 45 U.S. 567 (1846) – 29, 47 United States v. Roselius, 56 U.S. 31 (1853) – 20 United States v. Sandoval, 167 U.S. 278 (1897) – 72 United States v. Sandoval, 231 U.S. 28 (1913) – 311 United States v. Santa Fe, 165 U.S. 675 (1897) – 72 United States v. Schenk, 249 U.S. 47 (1919) – 583 United States v. Schooner Peggy, 5 U.S. 103 (1801) – 14, 18, 46, 59, 585, 589–90

Table of Cases United States v. Shauver, 214 F. 154 (E.D. Ark. 1914) – 199 United States v. Sisal Sales Corp., 274 U.S. 268 (1927) – 263–66, 269, 296 United States v. Smith, 18 U.S. 153 (1820) – 33–34, 36, 255–56, 496 United States v. Spelar, 338 U.S. 217 (1949) – 330 United States v. Standard Oil Co., 221 U.S. 1 (1911) – 557 United States v. Stuart, 489 U.S. 353 (1989) – 215, 328, 336, 338 United States v. Texas, 162 U.S. 1 (1896) – 80, 84 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) – 331, 562, 602 United States v. Weld, 127 U.S. 51 (1888) – 64, 71, 461 United States v. Wiggins, 39 U.S. 334 (1840) – 20, 23 United States v. Wong Kim Ark, 169 U.S. 649 (1898) – 104, 106, 116, 149–51, 155, 161, 604 United States v. Worrall, 2 U.S. 384 (D. Pa. 1798) – 27 United States v. Yen Tai, 185 U.S. 213 (1902) – 202, 206–08, 212 United States v. Yorba, 68 U.S. 412 (1864) – 61, 68, 72, 80, 83 United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) – 108 United States ex rel. Boynton v. Blaine, 139 U.S. 306 (1891) – 461 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) – 344 Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936) – 197, 202, 210, 213 Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) – 330 Van Der Weyde v. Ocean Transport Co., 297 U.S. 114 (1936) – 197 Van Reynegan v. Bolton, 95 U.S. 33 (1877) – 72 Vella v. Ford Motor Co., 421 U.S. 1 (1975) – 325, 347 Venus, The, 12 U.S. 253 (1814) – 33, 110, 171 Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) – 372, 402–04 Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948) – 330, 423 Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 248 (Apr. 9) – 453 Vilas v. City of Manila, 220 U.S. 345 (1911) – 205, 236–37, 242

xxxiii Vimar Seguros v. M/V Sky Reefer, 515 U.S. 528 (1995) – 349–50 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) – 348 W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400 (1990) – 364–65 Wagnor v. Evans, 170 U.S. 588 (1898) – 73 Ward v. Race Horse, 163 U.S. 504 (1896) – 70, 73–74, 82, 87, 134–36, 138–41 Wardair Canada, Inc. v. Florida Department of Revenue, 477 U.S. 1 (1986) – 341 Ware v. Hylton, 3 U.S. 199 (1796) – 7, 13–16, 18, 22, 30, 46, 49–50, 56, 85, 196, 250–51, 373, 455–56, 589, 591, 596 Warren v. United States, 340 U.S. 523 (1951) – 325, 337, 347 Washington v. Glucksberg, 521 U.S. 702 (1997) – 275, 492, 495, 499 Washington v. Washington State Commercial Passenger Fishing Vessels Association, 443 U.S. 658 (1979) – 351 Waters v. Collot, 2 U.S. 247 (1796) – 24 Watson v. Tarpley, 50 U.S. 517 (1856) – 30, 234, 251, 596 Webb v. O’Brien, 263 U.S. 313 (1923) – 210, 214–15 Weinberger v. Rossi, 456 U.S. 25 (1982) – 329, 334–35, 392–93, 397–99, 424, 440, 600 Weltover, Inc. v. Republic of Argentina, 941 F.2d 145 (2d Cir. 1991) – 404–05 West River Bridge Co. v. Dix, 47 U.S. 507 (1848) – 42 Western Maid, The, 257 U.S. 419 (1922) – 254 Western Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92 (1901) – 229 Westmoreland v. United States, 155 U.S. 545 (1895) – 70 Whitney v. Robertson, 124 U.S. 190 (1888) – 56, 60, 64, 67, 70, 73–74, 78–80, 83, 134, 140, 206, 209, 455, 458, 591 Wiggans v. Conolly, 163 U.S. 56 (1896) – 82 Wildenhus’s Case, 120 U.S. 1 (1887) – see Mali v. Keeper of the Common Jail Williams v. Heard, 140 U.S. 529 (1891) – 58, 64, 71, 461 Williams v. Suffolk Insurance Co., 38 U.S. 415 (1839) – 18, 47 Willson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829) – 303 Wilson v. Girard, 354 U.S. 524 (1957) – 325, 338 Wilson v. McNamee, 102 U.S. 572 (1881) – 125 Wilson v. Wall, 73 U.S. 83 (1867) – 70, 75 Windsor v. McVeigh, 93 U.S. 274 (1876) – 478

xxxiv Wong Wing v. United States, 163 U.S. 228 (1896) – 149–50, 155, 602 Worcester v. Georgia, 31 U.S. 515 (1832) – 14, 32, 47, 82 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) – 408 Wright v. Henkel, 190 U.S. 40 (1903) – 210, 212 Wulfsohn v. Russian Soviet Federated Soviet Republic, 266 U.S. 580 (1924) – 234, 244, 595 Wyoming v. Colorado, 259 U.S. 419 (1922) – 231 Wyoming v. Oklahoma, 502 U.S. 437 (1992) – 430 Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) – 371 Yamataya v. Fischer, 189 U.S. 86 (1903) – 206 Yee Won v. White, 256 U.S. 399 (1921) – 206

Table of Cases Yick Wo v. Hopkins, 118 U.S. 356 (1886) – 61–63, 69, 85, 311–12, 339 Young v. United States, 97 U.S. 39 (1878) – 131, 133, 259 Young Jacob and Johanna, The, 165 Eng. Rep. 81 (1798) – 111–12 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579 (1952) – 282, 332–33, 424, 431, 462, 507–08, 511, 513, 583, 602 Zadvydas v. Davis, 533 U.S. 678 (2001) – 602 Zemel v. Rusk, 381 U.S. 1 (1965) – 344 Zenith Radio Corp. v. United States, 437 U.S. 443 (1978) – 330 Zicherman v. Korean Air Lines, 516 U.S. 217 (1996) – 337, 347 Zschernig v. Miller, 389 U.S. 429 (1968) – 337, 340, 427

Acknowledgments

Many people contributed to this volume. We cannot thank all of them, but we would like to acknowledge a few whose contributions merit special thanks. The project benefited greatly from a two-day conference at Santa Clara University in November 2009, which almost all of the contributing authors attended. This conference provided a wonderful opportunity for dialogue among the authors and helped to fuse the separate contributions into a coherent whole. The editors appreciate the financial support provided by Dean Donald Polden and the Center for Global Law and Policy at Santa Clara University. Special thanks are due to Galina Pappu, whose exceptional administrative assistance helped ensure that the conference proceeded without a hitch. We gratefully acknowledge the tireless efforts of John Berger at Cambridge University Press, who has supported this project from the very beginning. We also appreciate the invaluable assistance of Eleanor Umali, who supervised the editorial process during its final stages. Our thanks go out to Mary Sexton, a research librarian at Santa Clara University, who consistently went above and beyond the call of duty to provide support for this project. Michael Wiesner and Jenny Arvidsson provided invaluable research assistance. Alan R. Delamora Madeiros applied his keen proofreading eye to the manuscript, and Monica Smith saved us from many errors in the index. We would like to thank all the authors who wrote chapters and essays for this book. We learned a tremendous amount from their intellectual contributions. The quality of the final product is a tribute to their efforts; any remaining flaws are undoubtedly attributable to the editors. Some individual words of thanks are also in order. David Sloss: I want to thank my wife, Heidi Sloss, and my two children, Dakin and Kamala. They tolerated my absence during many evenings and weekends when I was working on this book. Words cannot adequately express my appreciation for their unceasing love and support. Michael Ramsey: I extend my thanks to President Mary Lyons and the University of San Diego and Dean Kevin Cole and the University of San Diego School of Law for providing research time and financial support. Even greater thanks are owed to my wife, Professor Lisa P. Ramsey, for her advice, support, and sacrifice during the course of this xxxv

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Acknowledgments

book project, and to my sons Christopher and Colin, who were (mostly) good when the project claimed my attention. Bill Dodge: I want to thank my spouse Liz O’Brien for her constant love and support and my sons Tris and Anthony for trying their best to stay quiet during countless conference calls with my coeditors.

The U.S. Supreme Court and International Law: Continuity and Change

Introduction The twenty-first century’s first decade was an extraordinarily active one for international law in the Supreme Court, with the Court issuing more than thirty decisions implicating international law. Many of these decisions came in high-profile cases, and many made important contributions to the Court’s jurisprudence. In Sanchez-Llamas v. Oregon and Medellin v. Texas, the Court considered the domestic legal status of treaties and the domestic effects of decisions by the International Court of Justice. It considered the federal judiciary’s role in applying customary international law under the Alien Tort Statute in Sosa v. Alvarez-Machain. In a series of cases including Lawrence v. Texas, Roper v. Simmons, and Graham v. Florida, it turned in part to international law and foreign practice to decide the scope of domestic constitutional rights. In F. Hoffman-La Roche Ltd. v. Empagran S.A., Morrison v. National Australia Bank Ltd., and other cases, it used principles originally rooted in international law to constrain the global reach of federal statutes. And in prominent cases arising in the aftermath of the September 11, 2001 terrorist attacks, the Court grappled with questions of individual rights and separation of powers in a new kind of international warfare. Many of these decisions were deeply controversial, provoking strong dissents from Justices not in the majority and strong criticism from academic and political commentators. Critics and supporters often differed sharply as to whether the Court’s decisions were faithful to or a radical departure from prior precedents. Indeed, the rhetoric of the criticisms can hardly be overstated: to some, the Court was abandoning a longstanding commitment to international law; to others, the Court was allowing international law to invade domestic law at the expense of traditional notions of national sovereignty. To assess the modern Court’s relationship with its international law past, it is first necessary to understand what has come before. To that end, this volume seeks to provide a complete account of international law in the Supreme Court’s decisions from the Founding to the present. To assist in this project, we are fortunate to have assembled a distinguished group of contributors with expertise in international law, foreign affairs law, and legal history. This book will not resolve debates about modern decisions, but we hope that it will inform those debates by providing a better understanding of the Court’s international law past. 1

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International Law in the U.S. Supreme Court

I. Scope and Objectives From its earliest decisions in the 1790s, the Supreme Court has used international law to help resolve some of the major controversies on its docket, and there is no doubt that it will continue to do so in the future. As it faces future controversies, it is safe to predict that the Court will look to the past for guidance. This book aims to assist judges, lawyers, and scholars in the difficult task of gleaning lessons from the past by presenting a comprehensive account of the Supreme Court’s use of international law in its decisions. While not claiming to note every passing reference to international law in the Court’s decisions, the intent is to cover all the cases or lines of cases in which international law has played a material role, showing how the Court’s treatment of international law has developed throughout the Court’s history. A central theme of the book is “continuity and change.” The Court’s approach to international law has changed markedly over time. Although there was substantial continuity in the Supreme Court’s international law doctrine from the Court’s inception through the end of the nineteenth century, the past century was a time of tremendous doctrinal change. Few aspects of the Supreme Court’s international law doctrine remain the same in the twenty-first century as they were two hundred years ago. This book provides an account of what changed in the Supreme Court’s international law doctrine and when those changes occurred. However, the book does not attempt to provide a systematic account of why those changes occurred. Some chapters provide broader historical context, but the book’s history remains necessarily incomplete. It says only a little about developments in international law outside the Court. It provides just some of the social and political context in which the Court’s decisions were made. And it touches only lightly on broader aspects of the Court itself, including its personnel, its ideological orientations and shifts, and the impact of its non-international law cases. Any complete history of the Court, or of international law, must attend to these other materials. But this book’s goal is more modest. Before evaluating how various influences may have shaped the Court’s international law doctrine, one must understand that doctrine. To understand the doctrine, one must understand what has changed, what has remained the same, and when key changes occurred. This book addresses those questions. We hope this account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court acted as it did and to what effect.

II. Organization The book’s organization is broadly chronological. It begins, in Part I, with an assessment of the Supreme Court and international law to 1860. Parts II through IV cover, respectively, the years from the Civil War to the end of the nineteenth century (1861–1900); the first half of the twentieth century through World War II (1901–1945); and the post-war years to the century’s end (1946–2000). Part V examines the leading post-2000 cases in light of this record of historical practice. Although the dividing lines between historical periods are concededly somewhat artificial, the book is deliberately designed to devote substantial attention to the period from the Civil War to the end of World War II. The decisions of this period in particular seem under-examined by prior scholarship, compared to both earlier and more modern

The U.S. Supreme Court and International Law

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decisions. As ensuing chapters describe, one can discern key doctrinal and jurisprudential shifts by examining relatively unknown cases from this era. Within the designated periods before 2000, the book further subdivides the Court’s treatment of international law into three substantive categories: (1) treaties, (2) the direct application of unwritten or customary international law, and (3) the use of international law in constitutional and statutory interpretation. Parts II, III, and IV each also contain a historical commentary relating the Court’s international law docket to wider legal, political, and social developments of their respective periods. For the post-2000 cases, the book takes a different approach. Here it identifies five lines of cases, roughly but not precisely corresponding to the substantive divisions employed in previous parts: (1) treaty cases, particularly Sanchez-Llamas and Medellin; (2) Sosa’s direct application of customary international law; (3) cases like Lawrence and Roper relating to international law and constitutional interpretation; (4) Empagran and the use of international law to interpret statutes; and (5) the war on terror cases. For each category, the book presents one main essay and two briefer responses. Recognizing that it is more difficult to achieve historical perspective with respect to the Court’s recent decisions, these essays are designed to be more opinionated and provocative than the preceding chapters. David L. Sloss, Santa Clara University School of Law Michael D. Ramsey, University of San Diego School of Law William S. Dodge, University of California, Hastings College of the Law

I From the Founding to the Civil War

1 International Law in the Supreme Court to 1860 David L. Sloss, Michael D. Ramsey, and William S. Dodge∗

I. The United States and the Law of Nations, 1776–1789 The Declaration of Independence in 1776 marked the birth of the United States as a nation and as a subject of the law of nations. As Chief Justice John Jay later wrote, “[T]he United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed.”1 Complying with the law of nations was important for a small, weak country trying to avoid trouble,2 but the law of nations was also a tool that the United States would use to protect its trade and commercial interests.3 National honor was at stake as well, an idea the Revolutionary generation took quite seriously.4 Interest and duty – as Jay put it – compelled the Founders to pay close attention to the law of nations.5

A. Eighteenth-Century Sources of International Obligations For eighteenth-century Americans, international legal obligations fell broadly into two categories: treaties and the unwritten law of nations. Formal written treaties formed an important part of European international relations at the time, as a way European nations arranged alliances, settled disputes, and established economic relations. American independence itself rested heavily on treaties. Two 1778 treaties with France cemented an ∗

1

2 3 4 5

David L. Sloss is Professor of Law, Santa Clara University School of Law. Michael D. Ramsey is Professor of Law, University of San Diego School of Law. William S. Dodge is Professor of Law, University of California, Hastings College of the Law. Chisholm v. Georgia, 2 U.S. 419, 474 (1793) (Jay, C.J.); see also Ware v. Hylton, 3 U.S. 199, 281 (1796) (Wilson, J.) (“When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.”). See Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 839–46 (1989). See Douglas J. Sylvester, International Law as Sword or Shield: Early American Foreign Policy and the Law of Nations, 32 N.Y.U. J. Int’l L. & Pol. 1 (1999). See Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 Am. J. Int’l L. 461, 481–88 (1989). See generally David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 923 (2010).

7

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alliance that led to French assistance against Britain.6 After French intervention turned the tide of the war, the 1783 Treaty of Peace with Britain recognized American independence on advantageous terms.7 By 1789 the United States had also concluded treaties with Morocco, Prussia, Sweden, and the Netherlands.8 Eighteenth-century treaties were understood as binding national commitments. That is not to say, of course, that they were never violated. But violations were regarded as serious matters that might easily lead to war, or at least to the other treaty party refusing to honor its own obligations. The eighteenth-century conception of the unwritten law of nations is less easily described.9 Two works in particular framed the early American view of the law of nations: Emmerich de Vattel’s The Law of Nations and William Blackstone’s Commentaries on the Laws of England.10 Blackstone described the law of nations as “a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world.”11 He included within the law of nations a variety of topics: maritime law, including prize and piracy; commercial transactions between persons from different countries (the law merchant or lex mercatoria); and questions concerning the rights of states themselves, such as the rights of ambassadors.12 Blackstone explained that the law of nations was a component of English law. “The law of nations,” he wrote, “is here adopted in it’s full extent by the common law, and is held to be a part of the law of the land.”13 However, Blackstone did not say much about the content of the law of nations, how it should be determined, or how it interacted with other sources of law.14 For the content of the law of nations, early Americans relied heavily on European treatise writers (“publicists”), including Grotius, Pufendorf, Bynkershoek, Burlamaqui, Wolff, and Rutherforth. Of the publicists, they turned most often to Vattel.15 Vattel divided the law of nations into four main categories, which varied in their sources and in their obligatory force: (1) the necessary, (2) the voluntary, (3) the conventional, and (4) the customary. Vattel’s “necessary law of nations” was based directly on natural law. It was immutable and absolutely binding – but only internally on the conscience of the sovereign.16 His “voluntary law of nations” was also based on natural law, mediated through the principle of sovereign equality, but – in contrast to the necessary law – it created external rights and duties.17 Confusingly, Vattel’s “voluntary law of nations” 6 7 8 9 10

11 12 13 14 15

16 17

Treaty of Amity and Commerce, U.S.-Fr., Feb. 6, 1778, 8 Stat. 12; Treaty of Alliance, U.S.-Fr., Feb. 6, 1778, 8 Stat. 6. Definitive Treaty of Peace, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80. See 2 Treaties and Other International Acts of the United States of America 59–227 (Hunter Miller ed., 1931). For further discussion, see Arthur Nussbaum, A Concise History of the Law of Nations (2d ed. 1954); Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 342–46 (2007). E. de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (Joseph Chitty trans., 1883) (1758); William Blackstone, Commentaries on the Laws of England (facsimile 1979) (1765–69). 4 Blackstone, supra note 10, at 66. See id. at 67–73. Id. at 67. On the status of the law of nations in eighteenth-century English law, see Anthony J. Bellia & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 20–28 (2009). See Edwin D. Dickinson, Changing Concepts and the Doctrine of Incorporation, 26 Am. J. Int’l L. 239, 259 n.132 (1932); Jay, supra note 2, at 823; Nicholas Onuf and Peter Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814, at 11 (1993). Vattel, supra note 10, Prelim. §§ 7–9. Id. Prelim. §§ 21, 28; Book III §§ 188–92.

International Law in the Supreme Court to 1860

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was not in fact voluntary. “In this particular, nations have not the option of giving or withholding their consent at pleasure,” Vattel wrote; they were “bound to consent.”18 Vattel’s last two categories – the conventional and the customary – arose from actual rather than presumed consent and were therefore not universal. What Vattel called the “conventional law of nations” consisted of treaties, which nations were not obliged to enter but which created externally binding obligations once they did.19 The “customary law of nations” was made up of “maxims and customs, consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law.”20 It bound only those nations that had adopted it, however, and any nation remained free to declare that it would no longer abide by a particular rule of the customary law.21

B. Difficulties under the Articles of Confederation, 1781–1788 The United States had obvious interests in upholding treaty obligations and the law of nations. Its very existence depended on keeping France as an ally and encouraging Britain to tolerate its independence and respect the commitments made in the Treaty of Peace. Further, the new nation needed to demonstrate to other European powers that it could fulfill international expectations by honoring treaty commitments, protecting ambassadors and merchants, and so forth. Unfortunately, the United States’ first formal structure of government, the Articles of Confederation (1781–1788), did little to promote enforcement of international obligations. The Articles provided for a loose confederation of States, with a weak national government composed of a single body, the Continental Congress.22 The Congress, which was more a diplomatic assembly than a legislature, had little power to make or enforce law and no power to create a national court system aside from a prize court.23 As a result, responsibility for enforcing treaties and the unwritten law of nations fell almost exclusively to the individual States. This arrangement proved unsatisfactory on a number of counts.24 First, some States failed to comply with U.S. treaties, often at the behest of local interests but to the great detriment of the nation as a whole. Most notoriously, States violated key provisions of the peace treaty with Britain. Article 4 of the Treaty promised that British creditors would meet “no lawful impediment” in collecting pre-war debts from American debtors, while Article 5 pledged that “Congress shall earnestly recommend” that state legislatures provide for the restitution of “properties which have been confiscated belonging to real British Subjects.”25 Despite these treaty commitments, 18 19 20 21

22

23

24 25

Id. Book III § 192. Id. Prelim § 24; Book II §§ 164, 218–19. Id. Prelim § 25. Id. Prelim. §§ 25–26; Book IV § 106. For further discussion, see Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. 202, 216-18 (2010); William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. Online 169, 171–75 (2010). On the Articles period, see Merrill Jensen, The Articles of Confederation (1940); Jack Rakove, The Beginnings of National Politics (1979); Richard Morris, The Forging of the Union, 1781–1789 (1984). The Federal Court of Appeals, which operated from 1780 to 1787, heard appeals from state courts in prize cases. See Henry J. Bourguignon, The First Federal Court: The Federal Appellate Prize Court of the American Revolution 1775–1787 (1977). For accounts of foreign affairs difficulties under the Articles, see Frederick Marks, Independence on Trial 3–95 (1973); Morris, supra note 22, at 194–219, 245–66; Ramsey, supra note 9, at 32–46. Definitive Treaty of Peace, U.S.-Gr. Brit., arts. 4–5, Sept. 3, 1783, 8 Stat. 80, 82–83.

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state governments continued to block collection of pre-war debts by British creditors and refused to restore confiscated property.26 State recalcitrance on the 1783 Treaty commitments quickly became a major issue between the United States and Britain. Congress agreed with Britain that the Treaty had been violated but could do no more than urge State compliance. Some nationalists, including John Jay and Alexander Hamilton, argued that state laws in conflict with treaties were void under the Articles,27 but the Articles did not directly say so. The States denied that treaties trumped state laws, and state courts (the only courts available) generally declined to invalidate state laws or provide remedies for British plaintiffs.28 As Hamilton described it: “The treaties of the United States under [the Articles] are liable to the infractions of thirteen different legislatures. . . . The faith, the reputation, the peace of the whole are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed.”29 Similar issues arose with respect to the law of nations. In 1783, New York passed a Trespass Act allowing those whose property had been taken under the British occupation to sue for damages. Hamilton represented a number of British defendants in these suits and litigated the famous test case Rutgers v. Waddington before the Mayor’s Court of New York in 1784.30 Relying heavily on Vattel, Hamilton argued that applying the New York Act to British subjects would violate the law of nations and the peace treaty with Britain.31 Mayor James Duane sat as Chief Judge and authored the court’s opinion in Rutgers. He rejected Hamilton’s broadest proposition – that statutes in violation of the voluntary law of nations were void – but found “great force” in the argument that no single State could violate that law. Under the Articles, Duane wrote, “[T]hese states are bound together as one great independent nation” and “must be governed by one common law of nations.”32 “[T]o abrogate or alter any one of the known laws or usages of nations, by the authority of a single state, must be contrary to the very nature of the confederacy.”33 Ultimately, though, Duane construed the Trespass Act not to violate the law of nations, applying a rule of interpretation he derived from Blackstone.34 “The repeal of the law of nations,” he wrote, “could not have been in contemplation, in our opinion, when the Legislature passed this statute; and we think ourselves bound to exempt that law from its operation.”35 In a Solomonic ruling, Duane held that the Trespass Act did not apply while the defendants occupied the plaintiff’s brew house under the direct authority of 26 27 28 29

30 31 32 33 34 35

See 31 Journals of the Continental Congress 1774–1789, at 781–874 (John C. Fitzpatrick ed., 1934) (Foreign Secretary John Jay’s report on state treaty violations); Marks, supra note 24, at 5–15. See Ramsey, supra note 9, at 44–45. See Allen Nevins, The American States during and after the Revolution 268–74, 336–37; 386–89 (1969). The Federalist, No. 22, at 183 (Alexander Hamilton) (Isaac Kramnick ed., 1987). Although the peace treaty violations were the most serious, States provoked diplomatic problems by violating other treaties as well. See 3 Diplomatic Correspondence of the United States 437–42 (U.S. Dept. of State, 1834) (note from Dutch minister Van Berkel to John Jay protesting violations of U.S.-Netherlands treaty). Hamilton’s papers and the court’s opinion are reprinted in 1 Julius Goebel, Jr., The Law Practice of Alexander Hamilton: Documents and Commentary 282–419 (1964). Id. at 368–73. The treaty argument relied not on an express provision but on the principle that by the law of nations “every treaty of peace includes an Amnesty.” Id. at 373. Id. at 405. Id. at 406. Id. at 415. Id. at 417.


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the British commander, allowing the plaintiff to recover damages for approximately half the period.36 During that same summer of 1784, the Pennsylvania Supreme Court tried Charles Julian de Longchamps for criminal violations of the law of nations in Respublica v. De Longchamps.37 Longchamps, a French subject, had insulted and then assaulted François Barbé-Marbois, secretary of the French legation in Philadelphia. He was convicted on two counts of violating the law of nations respecting ambassadors. As Chief Justice McKean explained at sentencing, “the law of nations . . . in its full extent, is a part of the law of this state,” and it was “the interest as well as duty of the government to animadvert upon your conduct with a becoming severity.”38 The court sentenced Longchamps to two years in prison and a fine of one hundred French crowns.39 In both cases, the state courts applied the law of nations as part of the common law. Rutgers construed a state statute to avoid a violation of the law of nations, while Longchamps redressed a law of nations violation with a criminal prosecution. But Longchamps in particular illustrates how difficult it was to ensure compliance without a system of federal courts. When France protested the assault on Marbois to the Continental Congress, there was nothing Congress could do but recommend action by the States.40 It had to explain “the difficulties that may arise . . . from the nature of a federal union in which each State retains a distinct and absolute sovereignty in all matters not expressly delegated to Congress leaving to them only that of advising in many of those cases in which other governments decree.”41 By 1787, national leaders had developed serious concerns about Congress’s inability to enforce treaties and the law of nations under the Articles. Relations with Britain were near a crisis point – Britain refused to evacuate military posts on U.S. soil, as it had promised to do in the peace treaty, until state violations of the treaty were resolved.42 Congress had been unable to make key commercial treaties, in part because European nations viewed the United States as an unreliable treaty partner. Although the Marbois incident had been largely defused by the state court’s decision, Congress’s embarrassment lingered, as did fears that another affront to an ambassador would provoke even more serious difficulties.43 Government under the Articles had other problems as well, but the difficulty in ensuring compliance with the nation’s international legal obligations was a key factor generating political momentum for a new constitution.44 James Madison’s influential 36 37 38 39

40 41 42 43 44

Id. at 419. 1 U.S. 111 (Pa. Ct. Oyer & Terminer 1784). Id. at 116, 117. Both quotations repeat, almost word for word, passages in Blackstone. Compare 4 Blackstone, supra note 10, at 67, 68. 1 U.S. at 118. For accounts of the episode and its aftermath, see G.S. Rowe & Alexander Knott, Power, Justice and Foreign Relations in the Confederation Period: The Marbois-Longchamps Affairs, 1784–1786, 104 Pa. Mag. Hist. & Biog. 275 (1980); William Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 491–94 (1986). See 1 Diplomatic Correspondence, supra note 29, at 89 (French protest); 27 Journals of the Continental Congress 1774–1789, at 478–79 (Gaillard Hunt ed., 1928). 28 Journals of the Continental Congress 1774–1789, at 314–15 (John C. Fitzpatrick ed., 1933). On the escalating crisis with Britain, see Samuel Bemis, A Diplomatic History of the United States 65–84 (4th ed. 1955). See, e.g., Letter from Thomas Jefferson to James Madison, May 25, 1784, 8 Papers of James Madison 43–45 (William Hutchinson et al., eds., 1962–1991) (discussing the Marbois incident). See, e.g., Marks, supra note 24, at 3–95; Morris, supra note 22, at 194–219, 245–66.

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1787 essay, “Vices of the Political System of Government in the United States,” identified the inability to enforce treaties and the law of nations as an important defect of the Articles.45 When delegates from the various States met in Philadelphia in the summer of 1787, Virginia Governor Edmund Randolph opened the Convention with a speech listing problems suffered under the Articles, including that Congress “could not cause infractions of treaties or of the law of nations, to be punished.”46 And when a new structure of government emerged from the Convention in the document that became the U.S. Constitution, it was clear that the delegates had taken dramatic steps to augment federal power to enhance compliance with international obligations.

C. The Constitution’s Text and International Law The document produced in Philadelphia in 1787 and ratified the next year revolutionized the structure of American government, including its relationship to treaties and the law of nations. Among other core changes, the new Constitution created a new Congress with true legislative power.47 Although it was limited to enumerated topics,48 especially in international matters Congress appeared to have broad lawmaking ability. Indeed, one of its specific powers was to “define and punish . . . Offenses against the Law of Nations.”49 The new Constitution also created a federal Supreme Court and empowered Congress to create lower federal courts.50 The federal courts, like the federal Congress, had limited jurisdiction, but their jurisdiction in international matters was plentiful, including cases arising under the Constitution, laws of the United States, and treaties; cases affecting ambassadors; admiralty and maritime cases; and cases between U.S. citizens and foreign nations or foreign citizens.51 Further, the Constitution made federal statutes supreme over state laws and specifically required state courts to enforce them.52 Congress would no longer have to depend on state legislatures and state courts to enforce treaties and the law of nations. Even more dramatically, the Constitution’s Article VI spelled out a new status for treaties: “Treaties made, or which shall be made, under the Authority of the United States,” would (like federal statutes and the Constitution itself) be “the supreme Law of the Land,” binding on state courts “any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”53 That provision, coupled with the federal courts’ jurisdiction over cases arising under treaties, appeared to empower federal courts to enforce treaties even in conflict with state law. Hamilton explained: “Laws are a dead letter without courts to expound their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations.”54 45 46 47 48 49 50 51 52 53 54

9 Papers of Madison, supra note 43, at 348–49. 1 Records of the Federal Convention of 1787, at 19 (Max Farrand ed., 1911). U.S. Const. art. I. See id., art. I, § 8. Id., art. I, § 8, cl. 10. Id., art. III, § 1. Id., art. III, § 2. Id., art. VI. cl. 2. Id. The Federalist No. 22, at 182 (Alexander Hamilton) (Isaac Kramnick ed., 1987).


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Despite the drafters’ evident attention to treaties and the law of nations, the new document left many matters without express resolution. The unwritten law of nations was mentioned only once, in the clause giving Congress power to define it and punish its infraction. Its relationships to state law, to presidential or congressional actions, and to federal judicial power were not addressed directly. Treaties received more explicit textual treatment, but many questions relating to the domestic implementation of treaty obligations were not addressed directly. Thus, as the new system of government came into effect in 1789, substantial issues remained to be resolved.

II. Treaties in the Supreme Court, 1789 to 1860 Between 1789 and 1860, the U.S. Supreme Court decided more than 150 cases in which one or more parties raised a claim or defense that relied, at least in part, on a treaty. Those cases addressed a number of issues, including the relationship with state law, private rights and judicial remedies, treaty interpretation, the relationship with federal statutes, and non-self-execution.

A. Treaties and State Law We have seen that the States’ compliance with treaties was a major issue under the Articles of Confederation. Ware v. Hylton in 1796 provided an early judicial test of that issue under the new Constitution.55 A British creditor sued American debtors to collect a debt incurred in 1774. The defendants answered that they had paid part of the debt to the State of Virginia in accordance with a law enacted by the Virginia legislature in 1777, thereby discharging that portion of the debt.56 In reply, the plaintiff contended that Article 4 of the 1783 peace treaty with Britain, providing that “[c]reditors on either side shall meet with no lawful impediment to the recovery . . . of all bona fide debts heretofore contracted,” removed any bar to recovery created by Virginia law.57 The Court ruled for the British plaintiff. The Justices disagreed about whether the Virginia discharge law was legally effective after the peace treaty went into effect and before ratification of the Constitution.58 However, Justice Samuel Chase wrote, “If doubts could exist before the establishment of the present national government, they must be entirely removed” by the language of the Supremacy Clause, for under that clause “a law of a State, contrary to a treaty” is void.59 Similarly, Justice William Cushing wrote that, under the Supremacy Clause, a treaty “overrules all State laws upon the subject.”60 Although Justice James Iredell dissented from the Court’s ultimate holding, arguing that the private debtor had discharged his liability by making payment to the State, he expressed a similar view of the Supremacy Clause: “[W]hen this constitution was ratified, 55 56 57 58

59 60

3 U.S. 199 (1796). Id. at 220–21. See id. at 209–10 (argument of plaintiff’s counsel). Compare id. at 236 (Chase, J.) (under the Articles, treaties “were superior to the laws of the states”) with id. at 271 (Iredell, J.) (under the Articles, the treaty had no legal effect in Virginia unless the Virginia legislature acted to enforce it). Justice Wilson agreed with Chase on this point. See id. at 281 (Wilson, J.). Id. at 236, 237 (Chase, J.). Id. at 282 (Cushing, J.).

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the case as to the treaty stood upon the same footing, as if every [state law] constituting an impediment to a creditor’s recovery had been expressly repealed, and any further act passed, which the public obligation had before required, if a repeal alone would not have been sufficient.”61 Ware showed that the Court would take seriously the Constitution’s declaration of treaties’ status as supreme law and invalidate state laws in cases of conflict. That was by no means a foregone conclusion: before the Constitution, treaties generally had not been applied directly as law in courts, and even if one accepted treaties’ supreme status as a general matter, ways might be found to reconcile apparently conflicting state laws. Thus Ware is striking for the Court’s embrace of a strong judicial role in treaty enforcement, even where enforcement required direct confrontation with state sovereignty. In subsequent years, the Court continued to invoke treaties to override conflicting state laws.62 Controversially, in Worcester v. Georgia63 the Court invalidated Georgia’s application of its laws to Cherokee lands as conflicting with treaties between the United States and the Cherokee Nation. Between 1789 and 1860, the Court never applied a state law in the face of a conflicting treaty obligation.

B. Private Rights and Judicial Remedies After the seminal decision in Ware, the Court did not retreat from the basic proposition that treaties established private rights that could be enforced judicially, and it extended judicial enforcement of treaties to areas not involving conflicting state law. Writing in 1809, Chief Justice John Marshall stated: “Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states; and whoever may have this right, it is to be protected.”64 Four decades later, Chief Justice Roger Taney wrote: “These treaties, while they remained in force, were, by the Constitution of the United States, the supreme law, and binding not only upon the government, but upon every citizen.”65 Throughout this period, the Court read treaties to create both rights and duties for private persons. The Court also recognized its own duty to enforce treaties. Justice Chase wrote that the Supremacy Clause gives state courts a constitutional duty to invalidate state laws that conflict with treaties.66 He added that “[n]ational or Federal Judges are bound by duty and oath to the same conduct.”67 Similarly, Chief Justice Marshall wrote, “The constitution of the United States declares a treaty to be the supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted.”68 Between 1789 and 1860, the Court decided dozens of cases in which one or more parties raised a claim or defense that relied on a treaty. In some cases, the treaty created 61 62 63 64 65 66 67 68

Id. at 277 (Iredell, J.). See, e.g., The Passenger Cases, 48 U.S. 283, 412–13 (1849) (Wayne, J.); Chirac v. Chirac’s Lessee, 15 U.S. 259 (1817); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603, 627–28 (1813). 31 U.S. 515 (1832). Owings v. Norwood’s Lessee, 9 U.S. 344, 348 (1809). Kennett v. Chambers, 55 U.S. 38, 46 (1852). Ware, 3 U.S. at 237. Id. United States v. Schooner Peggy, 5 U.S. 103, 103–04 (1801).


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a private right of action authorizing plaintiffs to bring suit in U.S. courts to enforce treaty-based rights.69 In others, a federal statute created a private right of action that authorized plaintiffs to file suits to enforce treaty-based rights.70 However, the Court never suggested that a statutory or treaty-based right of action was necessary for judicial enforcement of treaties. The Court applied treaties on behalf of plaintiffs in ejectment actions,71 admiralty cases,72 breach of contract actions,73 and debtor-creditor disputes.74 It applied treaties on behalf of defendants in admiralty cases,75 suits to rescind contracts,76 and suits for specific performance of contracts.77 In all these cases, and in many others,78 the Court applied a treaty-based rule to support its judgment in favor of the prevailing party, even though there was no language in the treaty or in any federal statute explicitly authorizing the Court to apply the treaty or authorizing the individual litigant to invoke the treaty. In some cases, the Court applied a treaty provision on behalf of a private litigant even though the treaty drafters had not crafted that particular provision for the benefit of private parties. Justice Joseph Story explained, “It cannot be doubted, that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the boundaries, so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights.”79 Although the boundary provisions were drafted primarily to regulate interstate relations, nothing precluded a court from applying them to resolve private disputes over title to property. The Supreme Court decided several cases before 1860 where it applied territorial boundary provisions in this fashion.80 This does not mean that treaty provisions were always judicially enforced. The Court declined to reach the merits of treaty-based claims in cases where it lacked jurisdiction81

69 70 71

72 73

74 75

76 77 78 79 80 81

See David Sloss, When Do Treaties Create Individually Enforceable Rights?, 45 Colum. J. Transnat’l L. 20, 54–57 (2006). See id. at 54–56. E.g., Guitard v. Stoddard, 57 U.S. 494 (1854) (relying in part on 1803 treaty with France to support plaintiffs’ title to property); see also Bissell v. Penrose, 49 U.S. 317 (1850) (relying in part on 1803 treaty with France to support plaintiff’s title to property); Stoddard v. Chambers, 43 U.S. 284 (1844) (same). E.g., Talbot v. Jansen, 3 U.S. 133 (1795) (relying in part on 1782 treaty with the Netherlands); see also United States v. Peters, 3 U.S. 121 (1795) (relying on 1778 treaty with France). E.g., Fitzsimmons v. Newport Insurance Co., 8 U.S. 185 (1808) (holding that condemnation of a U.S. ship by a British prize court violated Art. 18 of the Jay Treaty and therefore the prize court’s ruling did not terminate defendant insurance company’s contractual duty to reimburse the insured shipowner). E.g., Ware v. Hylton, 3 U.S. 199 (1796) (awarding judgment to British creditor on the basis of Article 4 of the 1783 peace treaty). E.g., Moodie v. The Ship Phoebe Anne, 3 U.S. 319 (1796) (awarding judgment to French privateer on the basis of 1778 treaty with France). Between 1794 and 1797, the Court affirmed more than a dozen lower court judgments in which courts ruled in favor of French privateers on the basis of Article 17 of the French treaty. See David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 St. Louis Univ. L.J. 145, 176–83 (2008) (summarizing cases). E.g., Carneal v. Banks, 23 U.S. 181 (1825) (applying 1778 treaty with France). E.g., Kennett v. Chambers, 55 U.S. 38 (1852) (holding that a contract for conveyance of land in Texas was void because it was made in violation of a bilateral treaty between the United States and Mexico). For additional examples, see Sloss, supra note 69, at 57–70. Poole v. Fleeger’s Lessee, 36 U.S. 185, 209 (1837). Although Poole involved an interstate compact, its reasoning is equally applicable to treaties. See, e.g., Davis v. Police Jury, 50 U.S. 280 (1850); Lattimer v. Poteet, 39 U.S. 4 (1840). See, e.g., Keene v. Clark’s Heirs, 35 U.S. 291 (1836); New Orleans v. De Armas, 34 U.S. 224 (1835).

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or where it lacked sufficient information to decide the merits of a claim.82 The Court also declined to reach the merits of treaty-based claims when Congress established a time limit for bringing certain types of claims and plaintiffs waited too long to file suit.83 Sometimes the Court dismissed treaty-based claims on the grounds that they raised political, not judicial, questions.84 But with the possible exception of the non-self-execution doctrine, discussed below, there is no evidence that the Court imposed any limitations on judicial enforcement of treaties that did not also apply to common law, statutory, or constitutional claims.

C. Treaty Interpretation In the late eighteenth and early nineteenth centuries, the Court routinely invoked the law of nations as a guide to treaty interpretation. In Ware, Justices Chase and William Paterson both cited law of nations principles and authorities to support their interpretations of the treaty with Britain.85 In United States v. Percheman, the Court invoked law of nations principles to support its interpretation of the 1819 treaty with Spain.86 The Court also invoked the law of nations for the principle that a treaty limits sovereign power from the moment of signature, even if the treaty does not enter into force until a subsequent exchange of instruments of ratification.87 Under the law of nations, one of the most important treaty interpretation principles was the principle of mutuality, or good faith.88 Vattel stated that treaties should be interpreted in a manner that “tends to the common advantage . . . or that has a tendency to place the contracting parties on a footing of equality.”89 This principle was the dominant canon of treaty interpretation in early-nineteenth-century Supreme Court jurisprudence.90 For example, in The Amiable Isabella, Justice Story wrote that the issues presented in the case “embrace the interpretation of a treaty which we are bound to observe with the most scrupulous good faith, and which our Government could not violate without disgrace, and which this Court could not disregard without betraying its duty.”91 A traditional corollary to the canon of good faith was the canon of liberal interpretation. In 1830, the Court expressed this principle as follows: “If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the most liberal exposition be 82 83 84 85 86 87 88 89 90 91

See, e.g., Soulard v. United States, 29 U.S. 511 (1830); The Divina Pastora, 17 U.S. 52 (1819); Harden v. Fisher, 14 U.S. 300 (1816). See, e.g., Strother v. Lucas, 37 U.S. 410 (1838); De la Croix v. Chamberlain, 25 U.S. 599 (1827). See infra p. 18. See Ware v. Hylton, 3 U.S. 199, 239 (1796) (Chase, J.) (citing Rutherforth and Vattel on the basic principles of treaty interpretation); id. at 253–55 (Paterson, J.) (citing Vattel and “the usages of civilized nations”). 32 U.S. 51, 88 (1833) (adopting an interpretation that conforms “exactly to the universally received doctrine of the law of nations”). See, e.g., United States v. d’Auterive, 51 U.S. 609, 622–24 (1851) (holding that France lacked power to issue land grants after signature of treaty). See, e.g., Ware, 3 U.S. at 253–54 (Paterson, J.) (invoking the principle of mutuality to support his interpretation of the peace treaty with Britain). Vattel, supra note 10, Book II § 301. See Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J. 1885, 1907–09 (2005). The Amiable Isabella, 19 U.S. 1, 68 (1821); see also Prigg v. Pennsylvania, 41 U.S. 539, 642 (1842) (Wayne, J., concurring); Lessee of Pollard’s Heirs v. Kibbe, 39 U.S. 353, 386 (1840) (Baldwin, J., concurring).


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adopted?”92 The Court recognized that some treaties do not address the rights of private parties. For example, in Comegys v. Vasse, the Court ruled that an arbitration panel established pursuant to a treaty with Spain had the authority to issue monetary awards that were binding between the United States and Spain, but lacked “the authority to adjust all conflicting rights of different citizens to the fund so awarded.”93 Even so, the Court invoked the liberal interpretation canon repeatedly in treaty cases throughout the nineteenth century to ensure judicial protection of treaty-based private rights.94 During this period, the Court gave no deference to the executive branch’s position on treaty interpretation questions.95 The best evidence of this zero-deference approach is the government’s low winning percentage in treaty cases. Between 1789 and 1838, the Supreme Court decided nineteen cases in which the U.S. government was a party, at least one party raised a claim or defense on the basis of a treaty, and the Court decided the merits of that claim or defense. The U.S. government won only three of those nineteen cases.96 Justice William Johnson expressed the no-deference approach succinctly (albeit in dissent): “[T]he views of the administration, are wholly out of the question in this Court. What is the just construction of the treaty is the only question here. And whether it chime with the views of the Government or not, this individual is entitled to the benefit of that construction.”97 The executive branch agreed that the judiciary had independent responsibility to decide treaty interpretation questions that arose in cases within the jurisdiction of U.S. courts. During the 1790s, in the midst of a naval war between Britain and France, French diplomats protested to U.S. executive officials, alleging that certain judicial proceedings violated U.S. treaty obligations to France.98 When the French Ambassador urged Secretary of State Randolph to intervene on behalf of France, Randolph replied: The courts of justice exercise the sovereignty of this country in judiciary matters, are supreme in these, and liable neither to control nor opposition from any other branch of the Government. . . . For, if the President were even to decide that a prize ought not to be prosecuted in our courts, the decision would be treated as an intrusion by those courts, and the judicial proceedings would go on notwithstanding. So speak the constitution and the law.99

Thus, despite repeated French protests that U.S. judicial proceedings were inconsistent with treaty obligations owed to France, the executive branch refused to intervene, insisting that the judiciary had independent responsibility to decide the treaty interpretation and other international law issues implicated in these cases.100 92 93 94 95 96 97 98 99 100

Shanks v. Dupont, 28 U.S. 242, 249 (1830). 26 U.S. 193, 212 (1828). See Van Alstine, supra note 90, at 1911–14; see also United States v. Acosta, 42 U.S. 24, 27 (1843); United States v. Arredondo, 31 U.S. 691, 744 (1832). See generally David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. Law 497 (2007). See id. at 506. The Amiable Isabella, 19 U.S. 1, 92 (1821) (Johnson, J., dissenting). See Sloss, supra note 75, at 173–76, 188–92. Letter from Edmund Randolph to Joseph Fauchet (June 13, 1795), in 1 American State Papers: Foreign Relations 617–18 (Walter Lowrie & Matthew St. Clair Clarke eds., 1833). See generally Sloss, supra note 75.

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Although the Court generally viewed treaty interpretation questions as appropriate for judicial resolution, it decided several cases during this period that identified specific treaty-related issues as political questions. For example, in Ware, responding to an argument that the 1783 peace treaty was void due to alleged British violations, Justice Iredell said that Congress, not the courts, had authority “to consider or declare it broken.”101 In Foster v. Neilson, responding to an argument that certain land in Louisiana was subject to Spanish sovereignty in 1804, the Court held that “[i]n a controversy between two nations concerning national boundary . . . the Court [must] conform its decisions to the will of the legislature.”102 In Doe v. Braden,103 the Court held that whether the King of Spain had authority to annul certain land grants made to Spanish citizens was a political, not a judicial, question.104 Subject to these exceptions, the Court generally adhered to the view that the judiciary had an independent responsibility to decide treaty interpretation questions when those questions arose in cases within the scope of its jurisdiction.

D. Treaties and Federal Statutes As we have seen, the Supreme Court routinely applied treaties to decide cases during its first seven decades. But what if a federal statute also applied to the case? By the late eighteenth century, Anglo-American jurisprudence had identified at least two broad principles for resolving conflicts between competing laws: lex posterior (a later-enacted law takes precedence); and lex specialis (the specific takes precedence over the general).105 There is some evidence that the Founders may have understood the lex posterior principle to apply to conflicts between treaties and statutes,106 although in The Federalist John Jay described treaties as “beyond the lawful reach of legislative acts” because “[a]s the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them.”107 As of 1860, the Supreme Court had not decided whether later-enacted statutes superseded prior conflicting treaties for purposes of domestic law. United States v. Schooner Peggy,108 decided in 1801, tacitly assumed that later-enacted treaties superseded prior inconsistent statutes because the Court applied a later-in-time treaty to invalidate a statutorily authorized seizure of property.109 But it was not until Taylor v. Morton110 101 102

103 104 105

106 107 108 109 110

Ware v. Hylton, 3 U.S. 199, 260 (1796) (Iredell, J.). 27 U.S. 253, 306–07 (1829); see also Williams v. Suffolk Ins. Co., 48 U.S. 415, 419–20 (1839) (citing Foster for the view that the executive’s decision “that the Falkland islands do not constitute any part of the dominions within the sovereignty of the government of Buenos Ayres” was conclusive on the judiciary). 57 U.S. 635 (1854). Id. at 657. Blackstone described the lex posterior principle as “a maxim of universal law.” See 1 Blackstone, supra note 10, at 59. Modern commentators have noted that the lex specialis principle “is a general rule common to all systems of law originating from the European Roman law tradition.” Otto Sandrock, Handcuffs Clauses in International Commercial Contracts: Basic Reflections on the Autonomy of the Parties to Choose the Proper Law for Their Contracts, 31 Int’l Law. 1105, 1109 (1997). See Julian Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Federal Statutes, 80 Ind. L.J. 319 (2005); Ramsey, supra note 9, at 166–67. The Federalist No. 64, at 379 (John Jay) (Isaac Kramnick ed., 1987). 5 U.S. 103 (1801). For more detailed analysis of Schooner Peggy, see Sloss, supra note 95, at 511–14. 23 F. Cas. 784 (C.C. Mass. 1855), aff’d 67 U.S. 481 (1863).


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in 1855 that Justice Benjamin Curtis, sitting as a Circuit Justice, explicitly endorsed the proposition that later-enacted statutes could supersede prior inconsistent treaties.111 When the Supreme Court as a whole adopted the later-in-time rule in 1871, it cited Taylor v. Morton as authority.112 There is also evidence that, in the late eighteenth century, the Court relied on the lex specialis principle to resolve conflicts between treaties and statutes. A set of cases in the 1790s applied an earlier-in-time treaty as a rule of decision, despite apparent conflict with a later-enacted statute. Between 1794 and 1797, the Court affirmed sixteen lower court judgments holding that U.S. courts lacked jurisdiction over libels for restitution of merchant vessels captured by French privateers.113 Under the rule announced in Glass v. The Sloop Betsey,114 all of these cases fell within federal admiralty jurisdiction under the 1789 Judiciary Act. In each case, however, the lower courts invoked Article 17 of the 1778 Treaty of Amity and Commerce with France115 as a bar to the exercise of statutorily granted admiralty jurisdiction.116 The Supreme Court affirmed these dismissals without addressing the apparent conflict between the 1778 treaty and the 1789 statute. One plausible explanation is that the Court believed, in accordance with the lex specialis principle, that the specific jurisdictional rule in Article 17 of the treaty took precedence over the general grant of admiralty jurisdiction in the 1789 Judiciary Act. Although the Supremacy Clause specifies that “all” treaties are the “supreme Law of the Land,” there was general agreement in the early nineteenth century that implementing legislation was constitutionally required for certain types of treaties to have domestic legal effect.117 Precisely which treaties fell in this category was unclear. All agreed that congressional legislation was needed to implement treaties requiring an appropriation of funds.118 By 1860, the United States had concluded several treaties promising the reduction or elimination of import duties.119 Congress routinely implemented these treaty provisions by enacting legislation amending U.S. tariff laws to conform to treaty requirements. Some commentators contend that a consensus had developed by the middle of the nineteenth century that legislation was constitutionally required to implement treaty provisions that reduced or eliminated import duties.120 By 1860, the United States had concluded three major treaties that involved acquisition of land from foreign powers: the 1803 treaty acquiring Louisiana from France,121 the 111

112 113 114 115 116 117 118 119 120 121

In contrast, Justice Samuel Nelson, sitting as a Circuit Justice in 1849, apparently endorsed the view that a later-enacted statute did not supersede a prior treaty. No record of the Circuit Court opinion remains, but it is described in the Supreme Court case, which was decided on other grounds. See Curtis’s Adm’x v. Fiedler, 67 U.S. 461, 467, 476–77 (1863). See The Cherokee Tobacco, 78 U.S. 616, 621 (1871). See Sloss, supra note 75 at 176–83 (summarizing cases). 3 U.S. 6 (1794). Treaty of Amity and Commerce, U.S.-Fr., art. XVII, Feb. 6, 1778, 8 Stat. 12. See Sloss, supra note 75, at 176–83. See, e.g., Prigg v. Pennsylvania, 41 U.S. 539, 619 (1842); see also John T. Parry, Congress, the Supremacy Clause, and the Implementation of Treaties, 32 Fordham Int’l L.J. 1209, 1304–16 (2009). See Parry, supra note 117, at 1280–94. See Oldfield v. Marriott, 51 U.S. 146, 160–61 (1851) (summarizing U.S. commercial treaties with thirteen countries). E.g., Samuel B. Crandall, Treaties: Their Making and Enforcement 183–99 (2d ed. 1916). Treaty for the Cession of Louisiana, U.S.-Fr., Apr. 30, 1803, 8 Stat. 200 [hereinafter Louisiana Treaty].

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1819 treaty acquiring Florida from Spain,122 and the 1848 treaty acquiring California from Mexico.123 All three treaties contained provisions protecting the property rights of individuals who owned land in the subject territories before the transfer of sovereignty.124 Although there were differences in wording among the three provisions, the Court applied all three in substantially the same way. If a person held a perfected title to real property before the effective date of the treaty, that person retained legal title when sovereignty passed to the United States. There was no need for legislation to perfect such already-perfect titles.125 However, if a person held an inchoate title before the effective date of the treaty, “the fee [i.e., the legal title] was transferred to the United States by the treaty, with the equity attached in the claimant.”126 The relevant treaty provisions obligated the United States to convert such imperfect titles into perfect titles, but only to the extent that the prior sovereign was obligated to perfect the title of that particular claimant.127 The Court stated in numerous cases that federal legislation was required to perfect these inchoate titles because Congress was the only actor with the domestic legal authority to confirm them.128 The Court did not clearly articulate this view until about 1844.129 Even so, as discussed below, the doctrine that federal legislation was required to convert inchoate titles into perfect titles may help explain Justice Marshall’s 1829 opinion in Foster v. Neilson.

E. Foster and Executory Treaties The doctrine of non-self-executing treaties is thought by many to have its origins in the Court’s 1829 decision in Foster v. Neilson.130 Foster was an ejectment action involving land west of the Perdido River in what is now southeastern Louisiana. Spain maintained that land west of the Perdido was part of Spanish Florida until 1819, when the United States acquired Florida from Spain, but the United States maintained that it acquired 122 123

124

125

126

127

128

129 130

Treaty of Amity, Settlement and Limits, U.S.-Spain, Feb. 22, 1819, 8 Stat. 252 [hereinafter Florida Treaty]. Treaty of Peace, Friendship, Limits and Settlement, U.S.-Mex., Feb. 2, 1848, 9 Stat. 922 [hereinafter Treaty of Guadalupe Hidalgo]; see also Gadsden Treaty, U.S.-Mex., Dec. 30, 1853, 10 Stat. 1031 (acquisition of portions of Arizona and New Mexico). See Louisiana Treaty, supra note 121, art. 3; Florida Treaty, supra note 122, art. 8; Treaty of Guadalupe Hidalgo, supra note 123, art. 8. This was also the rule under the law of nations. See infra pp. 28, 34. For example, the Court said in United States v. Roselius that “[i]f the grant of the French government to Duport was a complete title, then no act on the part of the American government was required to give it additional validity, as the treaty of 1803, by which Louisiana was acquired, sanctioned perfect titles.” 56 U.S. 31, 34 (1853); see also McDonogh v. Millaudon, 44 U.S. 693, 706 (1845); United States v. Wiggins, 39 U.S. 334, 350 (1840). McDonogh, 44 U.S. at 706; see also Strother v. Lucas, 37 U.S. 410, 436 (1838). The Court used the terms “perfect,” “complete,” and “legal” title interchangeably, distinguishing sharply between this class of property rights and “inchoate,” “incomplete,” or “equitable” titles, terms it also used interchangeably. See Wiggins, 39 U.S. at 350 (stating that “the United States were bound, after the cession of the country, to the same extent that Spain had been bound before the ratification of the treaty, to perfect” these inchoate titles); see also Florida Treaty, supra note 122, art. 8. The Court observed in United States v. Reynes, for example, “that imperfect titles derived from a foreign government can only be perfected by the legislation of the United States.” 50 U.S. 127, 153 (1850); see also Menard’s Heirs v. Massey, 49 U.S. 293, 307 (1850). See Chouteau v. Eckhart, 43 U.S. 344, 374–75 (1844). 27 U.S. 253 (1829).


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the land west of the Perdido from France as part of the 1803 Louisiana Purchase.131 The plaintiffs’ title in Foster derived from an 1804 land grant from the Spanish governor of Florida.132 The Court held unanimously that this grant was void because the land at issue was already part of the United States in 1804.133 The Court divided, however, on whether the plaintiffs had an equitable claim to the property under Article 8 of the Florida Treaty.134 “The majority of the Court,” said Marshall, believed that Spanish grants west of the Perdido after 1803 were simply “void.”135 In contrast, Marshall wrote, “One other judge and myself are inclined to adopt” the view that imperfect grants for land west of the Perdido “were as obligatory on the United States, as on his catholic majesty.”136 In this context, Marshall penned the following words, which have come to be associated with the doctrine of non-self-executing treaties: Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.137

Marshall believed legislation was necessary to implement Article 8 of the Florida Treaty, but it is not clear why. The dominant contemporary interpretation of Foster asserts that “the need for implementing legislation has its source in the treaty itself.”138 Under this view, Marshall’s conclusion that Article 8 required legislative implementation rested entirely on treaty interpretation, not on a separation of powers analysis.139 This interpretation of Foster is problematic because the claim that Article 8 requires legislative implementation has no basis in the treaty text. The treaty specified that grants “shall be ratified and confirmed.”140 But as Marshall himself conceded, the text did not address the question “[b]y whom shall they be ratified and confirmed?”141 Moreover, it was well established in the early nineteenth century, as it is today, that international law does not govern the internal processes through which nations implement treaty obligations.142 Alternatively, one might read Marshall as employing the analytic framework articulated by Justice Iredell in Ware. Iredell distinguished between executory and executed 131 132 133 134 135 136 137 138 139 140 141 142

See Sloss, supra note 69, at 79–83. Foster, 27 U.S. at 253–55. See id. at 300–09. See id. at 310–14. Id. at 313–14. Id. at 313. Id. at 314. Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 631 (2008). See id. at 629–37. Florida Treaty, supra note 122, art. 8. Foster, 27 U.S. at 315. See 1 Sir Robert Jennings & Sir Arthur Watts, Oppenheim’s International Law § 21 (9th ed. 1992); 2 Charles Cheney Hyde, International Law, Chiefly as Interpreted and Applied by the United States § 523 (1922) (stating that the process by which states effect performance of treaty obligations “is primarily a matter of domestic concern”); id. § 524 n.4 (citing eighteenth- and nineteenth-century authorities).

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treaty provisions.143 Executed treaty provisions “require no further act to be done,”144 while executory treaty provisions require further steps to fulfill the nation’s commitments. Iredell divided executory provisions into three classes: legislative, executive, and judicial.145 He added, “[W]hen a nation promises to do a thing, it is to be understood, that this promise is to be carried into execution, in the manner which the Constitution of that nation prescribes.”146 Thus, under Iredell’s framework, the question whether a particular treaty provision requires legislative implementation involves a two-step analysis. In step one, the court analyzes the treaty to determine whether the provision is executory or executed. If it is executory, step two involves a domestic separation of powers analysis to determine whether legislative implementation is required. Article 8 of the Florida Treaty, at issue in Foster, said that land grants made by Spanish authorities before 1819 “shall be ratified and confirmed to the persons in possession of the lands.”147 Marshall distinguished this language from hypothetical language stating that “grants are hereby confirmed.”148 “Had such been its language,” said Marshall, “it would have acted directly on the subject”149 – it would have been “executed” because no further act would be necessary to implement the provision. But in Marshall’s view, because Article 8 specified that land grants “shall be ratified and confirmed,” the treaty merely “pledge[d] the faith of the United States to pass acts which shall ratify and confirm” the grants.150 Article 8 was executory, not executed, because it obligated the United States to take further steps to confirm the grants. Subsequent nineteenth-century opinions confirm that Marshall’s analysis in Foster relied on this distinction between executory and executed treaty provisions.151 This alternative interpretation of Foster also presents difficulties. Marshall stated unambiguously in Foster that Article 8 required legislative implementation.152 If Marshall was applying Iredell’s two-step framework, one would expect to see a domestic separation of powers analysis to support this conclusion, but Marshall’s opinion in Foster contains no such analysis. Even so, if Marshall was applying a two-step analysis, later decisions may shed light on the unarticulated second step. Under Marshall’s interpretation of the Florida Treaty, Article 8 granted the Foster plaintiffs an inchoate or equitable title. This meant that the United States had a treaty obligation to convert that title into a perfect title “to the same extent, that the same grants would be valid if the territories had remained under the dominion of” Spain.153 As noted previously, later Supreme Court decisions established that Congress was the only actor with the domestic legal authority

143 144 145 146 147 148 149 150 151

152 153

Ware v. Hylton, 3 U.S. 199, 271–73 (1796) (Iredell, J.). Id. at 272. Id. Id. Florida Treaty, supra note 122, art. 8. Foster, 27 U.S. at 314. Id. Id. See, e.g., Rhode Island v. Massachusetts, 37 U.S. 657, 746 (1838) (stating that Foster “recognized the distinction between an executory treaty . . . and an executed treaty”); see also David Sloss, Non-SelfExecuting Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 19–23 (2002). Foster, 27 U.S. at 315 (stating that “the ratification and confirmation which are promised must be the act of the legislature”). Florida Treaty, supra note 122, art. 8.


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to perfect inchoate titles.154 Marshall’s opinion in Foster may have anticipated these later decisions.155

∗

∗

∗

In sum, during the period under consideration the Supreme Court recognized that some treaty provisions had to be implemented by Congress and that a few other issues were political questions. But for the most part, the Court dealt with treaties as law, to be interpreted by courts in good faith and applied to decide issues presented in litigation.

III. The Law of Nations in the Supreme Court, 1789 to 1860 We have seen that the Supreme Court routinely applied treaties as a source of law to decide cases. Treaties, of course, are mentioned both in Article III’s description of the “judicial Power” and in Article VI’s Supremacy Clause. But what role should be given to the unwritten law of nations, which (unlike treaties) was not expressly listed in the Supremacy Clause or Article III? The new federal Congress attempted an answer in the Judiciary Act of 1789, creating the lower federal courts and directing, in Section 34, that the “laws of the several states . . . shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.”156 But this formulation only went so far – what if no state law “applied” (and how did one determine if state law applied)? Moreover, by its terms Section 34 did not encompass cases in equity or admiralty, which were not “trials at common law.” Further, while Section 34 seemed not to contemplate the law of nations as a rule of decision, another part of the Judiciary Act apparently did. By Section 9, federal district courts had jurisdiction over claims brought by aliens “for a tort only in violation of the law of nations or a treaty of the United States.”157 Finally, as noted previously, English courts and pre-ratification state courts had applied the law of nations as part of the common law. By omitting mention of the law of nations as a rule of decision, did the Constitution and the Judiciary Act mean to foreclose that practice or to assume its continued operation?

A. The Law of Nations in Admiralty The Supreme Court’s first case decided directly under the law of nations appears to be Talbot v. Jansen in 1795.158 Jansen was the Dutch owner of The Magdalena, a merchant ship captured by two privateering captains, Talbot and Ballard. Revolutionary France was then at war with Britain and the Netherlands, and enterprising Americans like Talbot and Ballard, sympathetic to the French cause or anxious to earn French prize money, signed on to the war effort as privateers. Talbot claimed to have taken French citizenship. Ballard was still an American and had outfitted his ship in the United States, so his participation 154 155

156 157 158

See supra p. 20. This explanation solves an additional puzzle. According to the conventional view, the Court overruled Foster in Percheman, holding that Article 8 was self-executing. See, e.g., Vázquez, supra note 138, at 628. However, subsequent decisions make clear that the Court believed Article 8 was executed with respect to perfected titles but executory with respect to inchoate titles. See, e.g., United States v. Wiggins, 39 U.S. 334, 349–50 (1840). 1 Stat. 73, 92. Id. at 77. 3 U.S. 133 (1795).

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in the capture apparently violated the U.S. treaty with the Netherlands and the law of nations respecting neutrality. The Justices delivered seriatim opinions, at least some of which rested directly on the law of nations. Justice Paterson found Ballard’s action “highly criminal by the law of nations” and Talbot’s claim fatally infected by his association with Ballard. Even if Talbot had become a Frenchman, “the principle deducible from the law of nations,” Paterson said, directs foreigners that “you shall not make use of our neutral arm, to capture vessels of your enemies, but of our friends. If you do, and bring the captured vessels within our jurisdiction, restoration will be awarded. . . . It is an act of justice, resulting from the law of nations.”159 Justice Iredell found Ballard’s action “palpably a violation of our own law (I mean the common law, of which the law of nations is a part, as it subsisted either before the act of Congress on the subject, or since that has provided a particular manner of enforcing it).”160 Chief Justice John Rutledge, in a brief opinion, found that the “capture . . . was a violation of the law of nations, and of the Treaty with Holland.”161 Neither Paterson nor Iredell, in their lengthy opinions, explored why they, as U.S. judges, had constitutional authority to apply the law of nations against Talbot, who had not clearly violated any U.S. law and was arguably no longer a U.S. citizen. Rather, they assumed the law of nations would apply – and it was a natural assumption. Prize courts in England and Europe routinely applied the law of nations; as Iredell wrote the same year, “all prize causes . . . are to be determined by the law of nations.”162 The Court had foreshadowed this assumption a year earlier in Glass v. The Sloop Betsey.163 The question in Glass was jurisdictional: the French captor argued that the law of nations gave jurisdiction only to the prize courts of the captor. Chief Justice Jay, delivering the Court’s opinion, found that U.S. courts had jurisdiction under the 1789 Judiciary Act.164 He assumed the law of nations might apply to the merits, as he directed the district court “to decide, whether, in the present case, restitution ought to be made to the claimants . . . (that is whether such restitution can be made consistently with the law of nations and the treaties and laws of the United States).”165 159 160 161

162 163 164

165

Id. at 156–58 (Paterson, J.). Id. at 161 (Iredell, J.). Id. at 168–70 (Rutledge, C.J.). Justice Cushing invoked only the treaty. All four concurred in restoring the ship to Jansen. The fifth Justice, Wilson, did not give an opinion because he had decided the case in the lower court. Thus three of the four Justices who expressed views rested their opinions at least in part on the law of nations, as well as the Dutch treaty. Penhallow v. Doane’s Administrators, 3 U.S. 54, 90 (1795). Although the Court in Talbot was not technically a prize court, the ultimate question was whether Talbot had seized a lawful prize. 3 U.S. 6 (1794). A year later, Chief Justice Rutledge, for the Court, found no jurisdiction in a dispute between a U.S. shipowner and a French privateer, where the captured ship was not in the United States and a French court had condemned it. United States v. Peters, 3 U.S. 121 (1795). Talbot confronted a similar threshold jurisdictional question, finding that the participation of Ballard, an American citizen, provided a basis for jurisdiction. Glass, 3 U.S. at 16. Similarly, in Waters v. Collot, the Court addressed a preliminary matter but added that the merits – the validity of a prize determination by the French governor of Martinique – would be “governed, as well by the law of nations, as by our municipal law.” 2 U.S. 247, 248 (1796). During the Neutrality Crisis of 1793, the Washington administration had submitted to the Court a set of questions related to French privateering, principally relating to the application of treaties and the law of nations concerning neutrality. See 6 Documentary History of the Supreme Court of the United States, 1789–1800, at 747–51 (Maeva Marcus ed., 1998) [hereinafter DHSC]. The Court declined to give an advisory opinion, but its decision in Glass the following year established its jurisdiction to answer similar questions in contested cases.


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After Talbot, the Court continued to apply the law of nations in admiralty cases where U.S. statutes did not provide a rule of decision. A year later, in The Mary Ford, the Court affirmed the Circuit Court, which (per Justice Cushing) had held for the French captor, finding “the operation of the law of nations appears to the court to be that by the said capture, the property became immediately the captor’s.”166 Eight years later, in Mason v. The Ship Blaireau, the Court decided a claim for salvage of a British ship damaged in a collision on the high seas on the basis of “the common usage of commercial nations.”167 In the related cases Rose v. Himely and Hudson v. Guestier, the Court considered whether a French decree condemning ships and cargo for trading with rebels in French colonies was binding in U.S. courts. The former owners contended that the French prize court lacked jurisdiction and thus its decrees did not operate to transfer title. Chief Justice Marshall concluded that “[i]f [the foreign prize court] exercises a jurisdiction which, according to the law of nations, its sovereign could not confer . . . its sentences . . . are not to be regarded by foreign courts.” Marshall derived this idea by reasoning from principle plus an examination of English practice; the latter, because it was not shown to be different elsewhere, he thought should be “considered as the uniform practice of civilized nations.”168 By the 1820s, the Court’s direct application of the law of nations in admiralty had become commonplace. In The Santissima Trinidad, Justice Story wrote for the Court that a privateer sailing on behalf of the revolutionary government of Buenos Aires violated the law of nations by seizing a Spanish ship.169 In The Marianna Flora, Story again wrote for the Court to resolve claims arising from an incident between a Portuguese merchant ship and a U.S. naval vessel on the basis of the law of nations.170 And while Story and Marshall, as discussed below, famously debated the sources of the law of nations in United States v. The La Jeune Eugenie and The Antelope,171 neither doubted that the law of nations provided the resolution of those cases. Thus by the time Marshall left the Court, the law of nations was firmly established as a rule of decision in admiralty cases. The pattern continued during the Taney years as the Court directly applied the law of nations without controversy to the conduct of both foreigners and Americans (including American naval officers) in admiralty disputes.172 166 167 168

169 170

171 172

3 U.S. 188, 197 (1796) (opinion of the Court); id. at 194 (opinion of Cushing). 6 U.S. 240, 267 (1804). Rose v. Himely, 8 U.S. 241, 269–71 (1808). Applying this principle, the Justices initially disagreed over whether seizures on the high seas, to punish violations of municipal law, were lawful under the law of nations. Id. at 279, 281, 290. The Court eventually found them lawful. Hudson v. Guestier, 10 U.S. 281, 283–84 (1810). D’Arcy v. Ketchum, 52 U.S. 165 (1851), posed the analogous question whether the judgment of a state court lacking jurisdiction under international law was enforceable in another State. The Court held that Congress, in passing the 1790 Full Faith and Credit Act, “did not intend to overthrow” the international law rule making such judgments unenforceable. Id. at 176. For discussion of international law in statutory interpretation more generally, see infra pp. 37–40. 20 U.S. 383 (1822). 24 U.S. 1 (1826). The Court apparently thought the law of nations could be the basis of the Portuguese shipowners’ claim for damages against a U.S. naval officer, although it ultimately rejected the claim on the facts. 26 F. Cas. 832 (C.C. Mass. 1822); 23 U.S. 66 (1825). See, e.g., Jecker, Torre & Co. v. Montgomery, 59 U.S. 110 (1856); United States v. Guillem, 52 U.S. 47 (1851); The Malek Adhel, 43 U.S. 410 (1844). The period’s most famous admiralty case, The Amistad, 40 U.S. 518 (1841), principally concerned whether a treaty with Spain required the Court to restore Africans on a salvaged slave trader to their alleged Spanish owners. The Court also invoked the law of nations to

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B. The Law of Nations and Criminal Law: The Neutrality Prosecutions and Aftermath Early in the post-ratification period, federal prosecutors and members of President George Washington’s administration contended that the law of nations not only formed part of the law of the land but also could be the basis of criminal prosecutions. The context was Washington’s attempt to maintain neutrality in the war between Britain and France in 1793. When Washington’s neutrality proclamation failed to deter American privateers from joining the French, his administration directed federal prosecutions of Americans who violated neutrality. It was not obvious, however, what law made these actions illegal: the proclamation was only a presidential pronouncement, and initially Congress passed no statute on the subject as it was not in session. Among other things, federal prosecutors invoked the law of nations, which (they said) made violating neutrality criminal. The contention was hardly unprecedented. Blackstone said that some law of nations violations could be prosecuted criminally,173 and we have seen that Pennsylvania in 1784 prosecuted Longchamps under the law of nations for assaulting a French diplomatic minister.174 Although the question never reached the Supreme Court, a number of Justices presided over neutrality prosecutions in the 1790s while serving as Circuit Justices, and they embraced the administration’s position.175 In the leading case, against Gideon Henfield, Justice James Wilson instructed the jury: “It has been asked by [Henfield’s] counsel . . . against what law has he offended? The answer is . . . he was bound to keep the peace in regard to all nations with whom we are at peace. This is the law of nations.”176 The prosecutions encountered substantial popular opposition. The defendants enjoyed widespread sympathy, intensified by a feeling that they had not violated any actual law. The jury acquitted Henfield, a result which, Marshall later commented, “exposed [the Executive] to the obloquy of having attempted a measure which the laws would not justify.”177 Once Congress reconvened, Washington recommended legislation giving the prosecutions a statutory basis, which Congress enacted in the Neutrality Act of 1794. Thereafter, neutrality prosecutions proceeded under the statute without material legal objection.178 While initially a broad spectrum of American leaders supported federal law of nations prosecutions, the issue soon became enmeshed in a broader debate. During John Adams’s presidency, federal prosecutors brought common law sedition cases in federal court,

173 174 175

176 177 178

decide that the ship’s property register was not conclusive evidence of ownership (ultimately holding that the Africans should not be restored). 4 Blackstone, supra note 10, at 66–73. See supra p. 11. Henfield’s Case, 11 F. Cas. 1099, 1100–01 (C.C.D. Pa. 1793) (Grand Jury charge of Chief Justice Jay); id. at 1117 (ruling by James Wilson); James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of South Carolina (May 12, 1794), reprinted in 2 DHSC, supra note 165, at 454, 467 (“The Common Law of England, from which our own is derived, fully recognizes the principles of the Law of Nations, and applies them in all cases falling under its jurisdiction, where the nature of the subject requires it.”). 11 F. Cas. at 1120. 5 John Marshall, The Life of George Washington 435 (1807). 4 Annals of Congress 11 (Joseph Gales, ed., 1834) (Washington’s address, Dec. 3, 1793); 1 Stat. 381 (1794) (Neutrality Act); see Trial of John Etienne, May 11, 1795, in State Trials of the United States 93 (Francis Wharton ed., 1849) (successful prosecution under the Neutrality Act).


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most notably against members of the opposition Republican Party.179 Republican leaders Thomas Jefferson (who as Secretary of State had supported the neutrality prosecutions) and Madison condemned the practice, arguing that the Constitution did not authorize courts to recognize federal crimes not based on a federal statute. Justice Chase, sitting as Circuit Justice in 1798, agreed, dismissing a prosecution for the common law crime of bribery.180 Ultimately the Supreme Court agreed as well, ironically in a sedition case brought against Jefferson’s critics. After Jefferson succeeded Adams as President, he largely discontinued sedition prosecutions, but allowed a proceeding against two Federalist newspaper editors, Hudson and Goodwin. The case did not reach the Court until 1812, when the Justices flatly and broadly held that there was no federal common law of crimes.181 Four years later in United States v. Coolidge, the Court (without further discussion) applied that ruling to an offense occurring on the high seas, despite Justice Story’s attempt to distinguish the cases.182 No serious subsequent attempt was made to contest these rulings, which seemed to preclude the direct criminal application of the law of nations.

C. The Law of Nations as General Common Law After Coolidge, the law of nations standing alone could not be the basis of criminal prosecution. Could the law of nations be applied directly in an ordinary civil case? The Judiciary Act directed that state law be the rule of decision in federal courts, but only “where it applied.” Answering this question requires a brief detour through the post-ratification idea of common law. As then-Professor William Fletcher has shown using the example of marine insurance, the understanding that emerged after 1789 was that, in matters not closely tied to a particular State and not governed by statutory law, federal and state courts applied a “general” common law that was neither state law nor federal law, but rather part of a common adjudicatory enterprise.183 Thus federal courts (including the Supreme Court) at the beginning of the nineteenth century applied their own common law of marine contracts not bound by, and indeed sometimes contradicting, state court decisions in the relevant State.184 Justice Story’s famous 1842 decision, Swift v. Tyson, extended this practice to commercial law generally. According to Story, the Judiciary Act did not command otherwise, because in nonlocal matters state courts were not applying state law but general law: in such cases, state law did not “apply.”185 This practice is important for the law of nations for two reasons. First, many commercial and maritime laws identified as general law were also sometimes described as branches of the law of nations.186 In maritime insurance cases, for example, the U.S. Supreme 179 180 181 182 183

184 185 186

See Stewart Jay, The Origins of Federal Common Law, Part I, 133 U. Pa. L. Rev. 1003 (1985). United States v. Worrall, 2 U.S. 384 (D. Pa. 1798). United States v. Hudson & Goodwin, 11 U.S. 32, 34 (1812). 14 U.S. 415 (1816). Story, sitting as Circuit Justice, had held to the contrary. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984); see also Bradford Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245 (1996). Fletcher, supra note 183, at 1538–49. 41 U.S. 1, 18–22 (1842). See 4 Blackstone, supra note 10, at 67.

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Court was in a sense applying an aspect of the law of nations as general common law.187 Second, the concept of general law explained how the inter-sovereign law of nations (such as protection of diplomats) was part of the “law of the land.” Because the law of nations was part of “general” common law, federal courts could apply it just as they routinely applied the law merchant and maritime law. This status was not directly tested in the Supreme Court in the early years, but it accords with leading commentary of the time188 and with the Judiciary Act’s assumption that aliens could sue civilly for violations of the law of nations.189 The United States’ acquisition of new territories in the first half of the nineteenth century gave the Supreme Court the opportunity to apply the law of nations to a number of new issues. In United States v. Percheman, the Court noted that under “the modern usage of nations, which has become law,” a change in sovereignty did not affect private property rights. “The people change their allegiance; their relation to their ancient sovereign is dissolved; but their . . . rights of property, remain undisturbed.”190 In Kennett v. Chambers, the Court refused to enforce a contract made in Cincinnati to support the Texas Revolution, at a time when the U.S. government still recognized Mexico’s sovereignty over Texas.191 “[E]very citizen of the Union,” the Court said, was “bound to commit no act of hostility against a nation with which the government is in amity and friendship. This principle is universally acknowledged by the laws of nations.”192 And in Jones v. McMasters, a suit concerning title to property in Texas, the Court determined that the federal courts had jurisdiction because the plaintiff was an alien. The question of alienage, the Court said, “does not stand upon the mere doctrines of municipal law, but upon the more general principles of the law of nations.”193 The Court also turned to the law of nations in assessing the United States’ relationship with Indian tribes. Johnson v. M’Intosh194 was a property dispute in which one party’s title derived from the United States and the other claimed title acquired from Indian chiefs. Chief Justice Marshall, writing for the Court, relied heavily on the international law doctrine of discovery to find in the United States an “exclusive right . . . to appropriate the

187

188

189

190 191 192 193 194

E.g., Rhinelander v. Ins. Co. of Pennsylvania, 8 U.S. 29 (1807); Fitzsimmons v. Newport Ins. Co., 8 U.S. 185 (1808); King v. Delaware Ins. Co., 10 U.S. 71 (1810); see also Swift, 41 U.S. at 19 (“The law respecting negotiable instruments may be truly declared . . . to be in a great measure, not the law of a single country only, but of the commercial world.”). For example, Attorney General Randolph, speaking of ambassadorial privileges, said in 1792, “The law of nations, although not specially adopted by the constitution or any municipal act, is essentially a part of the law of the land.” 1 Op. Atty Gen. 27 (1792). Likewise Hamilton, discussing the laws of neutrality in 1793, noted that “the laws of Nations form a part of the law of the land.” Pacificus, No. 1, 15 Papers of Hamilton, supra note 30, at 43. See 1 Op. Atty. Gen. 57, 59 (1795) (William Bradford) (Americans who attacked British colony in Sierra Leone could be liable under Section 9 for violating law of nations); 1 Op. Atty Gen. 69 (1797) (Charles Lee) (participants in raid on Spanish Florida liable under common law, because “[t]he common law has adopted the law of nations in its fullest extent, and made it part of the law of the land”). This appears to have been the background understanding both of Article III, see Ramsey, supra note 9, at 355–61, and of Section 9 of the Judiciary Act. See William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221, 243–56 (1996). 32 U.S. 51, 86–87 (1833). 55 U.S. 38, 49 (1852). Id. at 50. 61 U.S. 8, 20 (1858). 21 U.S. 543 (1823).


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lands occupied by the Indians.”195 Marshall’s opinion extensively surveyed the practice of European nations to establish “universal recognition of these principles.”196 Cases involving the conflict of laws provide another example in which the Supreme Court applied the law of nations as general law. In Banks v. Greenleaf, Justice Bushrod Washington, sitting as Circuit Justice, had to decide whether a discharge in bankruptcy in Maryland would bar a debt contracted in Virginia. “What, then, says the law of nations upon this subject?” he asked. “That the law of the country where the contract is made shall prevail; and if the law of a foreign country be inconsistent with ours, ours shall prevail.”197 Washington found these rules in the writings of the Dutch jurist Ulrich Huber, who maintained that all law was territorial but that a nation would recognize foreign law by comity so long as that law was not prejudicial to its own interests or to those of its citizens.198 Justice Story adopted Huber’s maxims in his influential 1834 treatise on the conflict of laws.199 The Supreme Court looked to the law of nations equally to decide conflicts between the laws of two nations and conflicts between the laws of two States. Ennis v. Smith applied the law of nations to determine whether French or Polish law should govern the inheritance of property in Maryland,200 while Bank of Augusta v. Earle held that “by the comity of nations” a corporation chartered in Georgia could bring suit to enforce contracts in Alabama.201 Because comity recognized foreign law only to the extent that it was not prejudicial to local interests, comity had a built-in element of discretion. Thus, Chief Justice Taney acknowledged in Bank of Augusta that when “the interest or policy of any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end.”202 When States had strongly contrary policies, as they did with respect to slavery, comity could be invoked on both sides of the argument.203 But the more general point is that in each of these cases, the Court looked not to the conflict of laws rules of a particular State but to the law of nations as articulated by Huber and Story. If the law of nations was part of general law, that suggested two further possible conclusions. The first was that courts might not use it to displace state statutory law. In the Swift system, it remained open to States to fix rules of state law by statute and thus withdraw them from general common law. The Judiciary Act, and the constitutional relationship that arguably inspired it, would then require federal courts to use the state 195

196

197 198

199 200 201 202 203

Id. at 584. Although the case concerned the power of the United States, Marshall did not treat it as a constitutional case. Rather, he (like the parties) approached it as a question of the general common law of property. The prevailing party invoked Vattel, Grotius, and other international law scholars to support the argument that U.S. rights trumped native rights. Id. at 567–68 (argument of counsel). Id. at 574. In Martin v. Waddell’s Lessee, 41 U.S. 367, 409 (1842), another property case, Chief Justice Taney reaffirmed Johnson’s reliance on the doctrine of discovery, although the case itself did not implicate native title. And in United States v. Rogers, 45 U.S. 567, 572 (1846), Taney again invoked the doctrine of discovery to support a congressional act extending U.S. law to Indian territory. 2 F. Cas. 756, 757 (C.C. Va. 1799). See id.; see also Ulrich Huber, De Conflictu Legum Diversarum in Diversis Imperiis, translated in Ernest G. Lorenzen, Selected Articles on the Conflict of Laws 162 (1947). Alexander Dallas published a translation of Huber in the U.S. Reports in 1797. Emory v. Grenough, 3 U.S. 369, 370–77 n.∗ (1797). Joseph Story, Commentaries on the Conflict of Laws §§ 17–38 (2d ed. 1841) (1834). 55 U.S. 400, 422–26 (1853). 38 U.S. 519, 589 (1839). Chief Justice Taney expressly rejected the argument that “the rules of comity between foreign nations do not apply to the states of this Union.” Id. at 590. Id. at 590. See generally, Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981).

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law as a rule of decision. Prior to Swift, the Supreme Court had held itself bound by state statutory law in commercial transactions,204 even where the statute sharply departed from general common law205 and even where transnational parties and events were involved.206 Swift seemed not to disturb this practice because it focused on the nature of state common law decisions.207 Whether this principle extended beyond commercial transactions to the law of nations generally is less clear. Arguably Ware v. Hylton indicated that it did.208 Ware, discussed previously, was principally a treaty case, but the British creditor also argued that the Virginia laws at issue violated the law of nations because they permanently extinguished debts incurred before the war. Although the Court’s discussion mainly centered on the treaty, several Justices addressed and rejected the law of nations argument, apparently believing that the Virginia legislature’s command was definitive unless some constitutionally superior law could be found.209 Ware may not be conclusive, however, because the state law at issue was enacted before the Constitution’s ratification and because it was not clear that it actually violated a binding provision of the law of nations.210 In any event, 204 205

206 207

208

209

210

E.g., Kirkman v. Hamilton, 21 U.S. 20 (1832); Brashear v. West, 32 U.S. 608 (1833) (Marshall, C.J.). Bank of the United States v. Tyler, 29 U.S. 366, 382 (1830) (enforcing a Kentucky statute regarding assignees’ duties even though it “carr[ied] the doctrine of diligence to an extent unknown to the principles of common law”). DeWolf v. Rabaud, 26 U.S. 476, 499-500 (1828) (Story, J.) (applying New York statute of frauds to resolve enforceability of international commercial agreement between U.S. citizen and French citizen). See Swift, 41 U.S. at 18–22. A decade after Swift, the Court unsettled this understanding in Watson v. Tarpley, 59 U.S. 517 (1856), in which it refused to apply a Mississippi statute restricting when suit could be brought on a negotiable instrument. Arguably the decision rested on a narrow holding that the state statute could not restrict the jurisdiction of the federal courts by dictating the timing of the suit. See id. at 520 (“Whilst it will not be denied, that the laws of the several states are of binding authority upon their domestic tribunals . . . it is equally clear that those laws cannot affect . . . the jurisdiction of the courts of the United States.”). But the Court went on to cite Swift for the apparently broader proposition that the U.S. Constitution secured to citizens and aliens “the power of litigating and enforcing their rights acquired under and defined by th[e] general common law” so that “any state law or regulation, the effect of which would be to impair the rights thus secured” would be “nugatory and unavailing.” Id. at 520–21. Watson appears to be an anomaly, however: post-Civil War cases returned to the view that they were bound by state statutes in commercial law cases, and the Court subsequently described the broad language of Watson as dicta that had not been followed. See Burns Mortgage Co. v. Fried, 292 U.S. 487, 494–95 & n.8 (1934). 3 U.S. 199 (1796); see Ramsey, supra note 9, at 350–55 (arguing that the Constitution’s text does not make the law of nations preempt state law). But see Bellia & Clark, supra note 14 (arguing that the Constitution requires States not to violate the law of nations in at least some circumstances). Justice Chase wrote, “It is admitted, that Virginia could not confiscate private debts without a violation of the modern law of nations, yet if in fact, she has so done, the law is obligatory on all the citizens of Virginia, and on her Courts of Justice; and, in my opinion, on all the Courts of the United States.” Id. at 229, 238. Justice Iredell agreed that if Virginia’s laws “were not strictly warranted by the law of nations, which ought to have been their guide, the acts were not for that reason void, but the State was answerable to the United States, for a violation of the law of nations.” Id. at 265–66; cf. Rutgers v. Waddington, discussed supra pp. 10–11. Like Vattel, see supra pp. 8–9, Justice Chase divided the law of nations into different categories. The “general” law of nations was “universal . . . and binds all nations,” while the “customary” law of nations was “only obligatory on those nations who have adopted it.” 3 U.S. at 227 (Chase, J.). The European practice of not confiscating debts, Chase explained, “was not binding on the state of Virginia, because founded on custom only; and she was at liberty to reject or adopt the custom, as she pleased.” Id. Justice Iredell also characterized the practice of not confiscating debts as part of the customary law of nations. See id. at 263 (Iredell, J.) (“Whether this customary law (admitting the principle to prevail by custom only) was binding on the American States . . . may be a question of considerable doubt.”). See generally Dodge, supra note 21, at 176.


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following Ware the issue did not arise directly, so the Justices shed no further light on the matter. The Court did, however, indicate that it might apply the law of nations in the specific context of disputes between States. The Court initially held that it had jurisdiction over interstate disputes without addressing what rules of decision should apply.211 In Rhode Island v. Massachusetts,212 a border dispute between the two States, Massachusetts’s counsel contended that, absent a federal treaty or statute, the Court lacked a source of law superior to state law and specifically denied that international law could be a rule of decision unless “the municipal law . . . has incorporated the international law as part of itself, and administers it by the force of domestic legislation.”213 The Court rejected this argument, concluding that it would decide “according to the law of nations, the charters from the crown under which both parties claim . . . [and] by the law of prescription, as claimed by the defendant.”214 The Court later ruled against Massachusetts on what appeared to be ordinary common law principles.215 The second possible implication of international law as general common law was that international law claims might not confer federal question jurisdiction under the Constitution’s Article III because they did not arise under “laws of the United States.”216 That issue did not arise directly in the first half of the nineteenth century, because Congress did not give federal courts federal question jurisdiction until much later. But something resembling this issue arose in American Insurance Co. v. Canter in 1828.217 Canter raised, in a complex and backhanded way, the question whether admiralty cases were cases arising under the laws of the United States. The issue was whether a Florida territorial court had jurisdiction over a salvage case (understood to arise in admiralty). Jurisdiction would exist only if the case were not one “arising under the laws of the United States,” because cases of that class were assigned exclusively to another court by statute. The Supreme Court, per Chief Justice Marshall, found jurisdiction, invoking the parallel words of the U.S. Constitution as well as the longstanding view of admiralty as part of general common law: The Constitution certainly contemplates these [cases in admiralty, cases affecting ambassadors, and cases arising under the laws of the United States] as three distinct classes of cases; and if they are distinct, the grant of jurisdiction over one of them, does not confer jurisdiction over either of the other two. . . . If it were not so, if this were a point open to inquiry, it would be difficult to maintain the proposition that they are the same. A case in admiralty does not, in fact, arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise.218 211 212 213 214 215 216

217 218

New Jersey v. New York, 30 U.S. 288 (1831). 37 U.S. 657 (1838). Id. at 675 (argument of counsel). Id. at 749. See Rhode Island v. Massachusetts, 40 U.S. 233, 272–73 (1841). To the same effect is Missouri v. Iowa, 48 U.S. 660 (1849). Compare Curtis A. Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587 (2002), with William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002). The issue would arise where an alien sued an alien on law of nations claims outside maritime or admiralty jurisdiction and not affecting ambassadors. 26 U.S. 511 (1828). Id. at 545–46.

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Canter did not directly resolve whether Article III included the law of nations as “laws of the United States,” but it suggests a negative conclusion.219

D. The Law of Nations and Federal Statutes A further post-ratification issue involved the relationship between federal statutes and the law of nations.220 Some early commentary implied that the federal government lacked power to violate the law of nations.221 But if there was ever a consensus in this direction, the Court quickly backed away from it. As discussed in the next section, the Court instead embraced the proposition that ambiguous or generally worded federal statutes should be interpreted not to violate the law of nations.222 This view implied that the Court would apply a clearly worded statute to override the law of nations, which Marshall seemed to confirm in The Schooner Exchange v. McFaddon in 1812.223 Justice Story made the point explicit in The Marianna Flora in 1826. One question in The Marianna Flora was whether a Portuguese ship’s attack on a U.S. ship in international waters violated a U.S. statute and subjected the Portuguese ship to seizure as a pirate. Story held on the facts that the attack was not “piratical” because it arose from mistaken identity, but he rejected arguments that the U.S. statute could not apply because it exceeded U.S. jurisdiction under the law of nations: But the Act of Congress is decisive on this subject. It not only authorizes a capture, but a condemnation in our courts, for such aggression; and whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that Courts of justice are bound to obey and administer them.224

More commonly, early federal statutes worked in harmony with, and indeed incorporated, the law of nations. At the beginning of the War of 1812, for example, Congress passed 219

220

221

222 223 224

Whether Canter is correct under the Constitution’s original understanding is another matter. See Dodge, supra note 216, at 701–11 (relying on early history and commentary to conclude that Article III’s “laws of the United States” included the law of nations). In Worcester v. Georgia, 31 U.S. 515 (1832), the Court addressed an analogous statutory question in dictum. The Georgia Supreme Court had affirmed Worcester’s conviction for violating a state statute making it illegal to reside in Cherokee territory without a state license. Whether the Supreme Court had appellate jurisdiction to review that decision under § 25 of the Judiciary Act depended on whether the case drew into question the validity of a state statute on the ground of its “being repugnant to the constitution, treaties and laws of the United States.” Id. at 541. If the sole objection to the statute had been that it regulated extraterritorially in violation of the law of nations, Chief Justice Marshall wrote, “[T]he objection, though complete, so far as respected mere right, would give this court no power over the subject.” Id. at 561. In other words, the law of nations was not part of the “laws of the United States” within the meaning of § 25. But the Court concluded that Georgia’s law conflicted with the sovereignty of the Cherokee Nation confirmed in U.S. treaties and statutes, as well as with Congress’s exclusive authority over Indian tribes under the Constitution, and that the law was therefore “repugnant to the constitution, treaties, and laws of the United States.” Id. See generally William S. Dodge, Customary International Law, Congress, and the Courts: Origins of the Later-in-Time Rule, in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts 531 (Pieter H.F. Bekker, Rudolf Dolzer & Michael Waibel eds., 2010). See, e.g., James Wilson, Lectures on Law, 1 The Works of James Wilson 67, 151 (Robert Green McCloskey ed., 1967) (arguing that judges have a “duty to declare” statutes contrary to the law of nature “void, because contrary to an overruling law”). See Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804); infra p. 37. 11 U.S. 116 (1812); see infra pp. 39–40. 24 U.S. 1, 39–40 (1826).


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the Prize Act, authorizing the President to commission privateers. Among other things, the Act required privateers to bring captured vessels to the courts of the United States (or nations in amity with the United States) for adjudication as to whether the capture was made with “just cause.”225 Although it did not specifically invoke the law of nations, U.S. courts adjudicating captures under the Prize Act assumed that the law of nations provided the standard for just cause. Cases arising under this Act and related presidential proclamations provided the Court numerous opportunities to apply the law of nations – not, technically, of its own force, but at Congress’s implicit direction without further statutory elaboration. Typical of these cases is The Joseph, which found an American ship trading with Britain to have “offended against the law of nations” and thus to be subject to seizure by American privateers operating under authority of a presidential commission issued pursuant to the Prize Act.226 Two of the Court’s best-known law of nations cases from this period arose in this posture. In Thirty Hogsheads of Sugar v. Boyle, Chief Justice Marshall discussed the sources of the law of nations: The law of nations . . . is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions.227

He also alluded to Congress’s power to change the law of prize, remarking that English prize law “continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it.”228 Likewise, in The Nereide, Marshall held that under the law of nations neutral goods carried in enemy ships remained neutral (and thus not subject to capture) despite the fact that Spain, the neutral country in this case, did not follow that rule. Retaliation was an issue for the political branches, and “[t]ill such an act be passed, the Court is bound by the law of nations which is a part of the law of the land.”229 Congress also enacted a Piracy Act, criminalizing piracy “as defined by the law of nations,”230 which came to the Court in United States v. Smith. The defendant argued that the law of nations was too vague to provide a definition of piracy usable in criminal prosecutions. The Court, per Justice Story, disagreed: What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing that law. There is scarcely a writer on 225 226

227 228 229 230

2 Stat. 759 (June 26, 1812). 12 U.S. 451 (1814); see also The Rapid, 12 U.S. 155 (1814); The Julia, 12 U.S. 181 (1814); The Venus, 12 U.S. 253 (1814). There are a host of such cases, the ones cited being merely representative. In at least some cases, the presidential commission directly limited captures to those permitted by the law of nations. See The Joseph, 12 U.S. at 455. In general, the Court tended strongly to rule for the captors, even in cases of some hardship, e.g., The Rapid, 12 U.S. at 163–64; The Joseph, 12 U.S. at 455, although it also firmly protected neutral rights in The Nereide, 13 U.S. 388 (1815). 13 U.S. 191, 198 (1815). Id. On the merits, the Court concluded that the produce of a Danish island occupied by the British thereby became enemy property subject to capture under the law of nations. Id. at 198–99. 13 U.S. 388, 423 (1815). Act of March 3, 1819, ch. 76.

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International Law in the U.S. Supreme Court the law of nations, who does not allude to piracy as a crime of a settled and determinate nature.231

Story included a lengthy footnote of authorities, principally European treatise writers, in support.232 Similarly, during the Taney era the Court applied the law of nations – among other sources of law – at Congress’s direction to resolve an enormous number of land title disputes arising from the United States’ acquisition of southern and western territory.233 Most of these cases were intensely factual, but they developed a central proposition of the law of nations that acquisition of territory did not alter the settled private rights of the inhabitants.

E. The Law of Nations and the President In some early cases the Court suggested that the President (unlike Congress) was constitutionally bound to comply with the law of nations, although the issue never arose directly.234 Justice Story, dissenting in Brown v. United States in 1814, explicitly said that after a declaration of war the President “has a discretion vested in him, as to [the war’s] manner and extent; but he cannot lawfully transcend the rules of warfare established among civilized nations.”235 Notably, Story saw the law of nations as both empowering and limiting the President: There is no act of the legislature defining the powers, objects or mode of warfare: by what rule, then, must he be governed? I think, the only rational answer is, by the law of nations as applied to the state of war. Whatever act is legitimate, whatever act is approved by the law, or hostilities among civilized nations, such he may, in his discretion, adopt and exercise.”236

In Brown, the question was whether a U.S. Attorney could condemn British property in the United States. Because Story found the seizure consistent with the law of nations, he thought the executive branch had authority to make it, even though it was not specifically authorized by Congress. Chief Justice Marshall, writing for the Court in Brown, took a different view, holding as a matter of constitutional separation of powers that only Congress could authorize seizure of enemy property.237 But he apparently agreed with Story that Congress, not the President, had authority to depart from the law of nations. Marshall noted that a 231 232 233

234

235 236 237

18 U.S. 153, 160–61 (1820). Id. at 163 note h. See, e.g., United States v. Ritchie, 58 U.S. 525 (1855) (land title in California); Bissell v. Penrose, 49 U.S. 317 (1850) (land title in former Louisiana territory); United States v. Arredondo, 31 U.S. 691 (1832) (land title in Florida). Both Hamilton and Madison indicated as much in earlier writings. Pacificus No. 1 (June 29, 1793), in 15 Papers of Hamilton, supra note 30, at 40 (“The Executive is charged with the execution of all laws, the laws of Nations, as well as the Municipal law which recognises and adopts those laws.”); Helvidius No. 2 (Aug.–Sept. 1793), 6 The Writings of James Madison 159 (Gaillard Hunt ed., 1906). 12 U.S. 110, 153 (1814) (Story, J., dissenting). Id. at 149 (Story, J., dissenting). Id. at 123 (concluding that an executive branch seizure must be “in execution of some existing law”). As discussed below, infra pp. 40–41, Marshall concluded that because the seizure violated the law of nations, Congress’s generally worded declaration of war did not authorize it.


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practice had grown of not seizing enemy property immediately on a declaration of war.238 Speaking of this practice, he wrote that “[t]his usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.”239 He further observed that this choice is “proper for the consideration of the legislature, not of the executive or the judiciary.”240 Similarly, Marshall, writing for the Court a year later in The Nereide, said that until “an act be passed . . . the Court is bound by the law of nations which is a part of the law of the land”241 – implying that a mere executive act would be insufficient. The Court acknowledged that some issues under the law of nations should be decided by the President rather than the courts, in particular the recognition of new nations. In Rose v. Himely, for example, Marshall wrote that “[i]t is for governments to decide whether they will consider St. Domingo as an independent nation, and until such decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered.”242 In short, there were political questions under the law of nations just as there were under treaties.243

F. Emerging Positivism: The La Jeune Eugenie and The Antelope As discussed previously, the eighteenth-century law of nations contained elements of natural law as well as appeals to practice. Vattel, its most celebrated expositor, based his “voluntary” law of nations on principles deducible from natural law.244 But a purely deductive approach, pursued by Vattel’s intellectual predecessor Christian Wolff,245 proved unsatisfactory; Vattel’s own work frequently appealed to actual practices for evidence of broader principles. As Jefferson wrote in 1793, the “principles of the law of nations” were “evidenced by the Declarations, Stipulations and Practice of every civilized Nation.”246 In the nineteenth century, the law of nations came increasingly to rest on nations’ practices – not merely as an evidentiary matter, but in a positivist rather than naturalist account of its origins. The question became whether countries ultimately were bound to comply with the law of nations on the basis of principles deduced by reason (the eighteenth-century view) or were bound to conform merely to common practices (in a strong version, to common practices to which they had consented).247

238 239 240

241 242 243 244 245 246 247

12 U.S. at 123–25. Id. at 128. Id. The usage at issue in Brown was at most a rule of the customary law of nations, from which nations had the option to depart. See supra pp. 8–9. Other decisions of the Marshall Court, however, seem to assert that Congress had authority to depart from the law of nations more broadly. See supra p. 32. 13 U.S. at 422–23. 8 U.S. 241, 272 (1808); see also Kennett v. Chambers, 55 U.S. 38, 51 (1852). See supra p. 18. See supra Part I.A. Christian Wolff, Jus Gentium Methodo Scientifica Pertractatam (1749) (Joseph Drake trans., J.B. Scott ed., 1964). Jefferson to Thomas Pinckney, May 7, 1793, 25 Papers of Thomas Jefferson 675 (Julian Boyd et al. eds., 1950–2005). For further discussion, see Ramsey, supra note 9, at 344–46; Jay, supra note 2. See Mark Weston Janis, The American Tradition of International Law: Great Expectations, 1798–1914 (2004); David J. Bederman, The Spirit of International Law 5–9 (2002); Dodge, supra note 220, at 546–49.

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This debate reached the federal courts in the 1820s, in a series of cases involving the slave trade. Earlier cases such as Smith and Boyle tended to finesse the issue by invoking both positivist and naturalist sources. The slave trade forced the question, because natural law (at least for many Northerners) seemed to point firmly against it, while practice showed that many nations, including European powers such as Spain and Portugal, still allowed it. Justice Story took up the matter, sitting on circuit in 1822, and set forth the classic naturalist position: Now the law of nations may be deduced, first, from the general principles of right and justice, applied to the concerns of individuals, and thence to the relations and duties of nations; or, secondly, in things indifferent or questionable, from the customary observances and recognitions of civilized nations; . . . I think it may be unequivocally affirmed, that every doctrine, that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may theoretically be said to exist in the law of nations; and unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and customs, it may be enforced by a court of justice, whenever it arises in judgment.248

Although the law of nations might be “modified by practice,” that was only on “things indifferent or questionable” or, in other words, on issues not controlled by natural law, for “no practice whatsoever can obliterate the fundamental distinction between right and wrong.”249 Chief Justice Marshall, writing for the Court in The Antelope three years later, was willing to concede that the slave trade was “contrary to the law of nature.”250 But he applied a positivist test of the law of nations: Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure.251

The Supreme Court did not suddenly convert to pure positivism between 1822 and 1825, and naturalist language persisted well into the second half of the nineteenth century.252 But The Antelope pointed in the direction of the future.

∗

∗

∗

Although the law of nations’ theoretical foundations were beginning to shift, the Court’s application of the law of nations during this period showed a good deal of consistency. The Court applied the law of nations as general common law in civil cases and in admiralty, acknowledging Congress’s authority to alter that law and the President’s authority to decide questions of recognition. The greatest change was in the criminal area, where 248 249 250 251 252

United States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (C.C.D. Mass. 1822). Id. 23 U.S. 66, 120 (1825). Id. at 121. Marshall relied heavily on a well-known English case, Le Louis, 165 Eng. Rep. 1464 (Adm. 1817), which Story in The La Jeune Eugenie had rejected. See Chapter 3.


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the Court rejected the idea of prosecutions directly under the law of nations for reasons having more to do with domestic concerns than with international law.

IV. International Law as an Interpretative Tool in the Supreme Court, 1789 to 1860 As we have seen, the Supreme Court applied treaties and customary international law directly as rules of decision in many cases. It also applied international law indirectly to help interpret domestic law in many others.

A. The Charming Betsy Presumption Even before ratification of the Constitution, American courts interpreted statutes to avoid conflicts with the law of nations. As discussed previously, in Rutgers v. Waddington the Mayor’s Court applied this rule of interpretation to New York’s Trespass Act, relying on Blackstone’s principle of avoiding unreasonable results.253 During the 1790s, the Supreme Court decided a series of cases involving French privateers in which it construed the federal courts’ admiralty jurisdiction narrowly to avoid violating the law of nations and the 1778 Treaty of Amity and Commerce with France.254 In United States v. Peters, for example, the Court prohibited the district court from exercising jurisdiction over a claim against a French privateer. “By the laws of nations, and the treaties subsisting between the United States and the Republic of France,” the Court explained, “the trial of prizes taken on the high seas, without the territorial limits and jurisdiction of the United States, and brought within the dominions and jurisdiction of the said republic, for legal adjudication . . . exclusively, belong[s] to the tribunals and judiciary establishments of the said republic.”255 Chief Justice Marshall’s first opinion for the Court articulated and applied a presumption against violating the law of nations.256 In Murray v. Schooner Charming Betsy three years later, Marshall gave that presumption its classic formulation: “[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”257 253

254

255

256

257

See supra pp. 10–11. Even earlier examples of this rule of interpretation can be found. See Miller v. The Ship Resolution, 2 U.S. 1, 3–4 (Fed. Ct. App. 1781) (construing ordinance on prize law to be consistent with the law of nations). See generally Sloss, supra note 75, at 176–83. However, in Glass v. The Sloop Betsey, 3 U.S. 6 (1794) and Talbot v. Jansen, 3 U.S. 133 (1795), the Court allowed admiralty jurisdiction in cases where there was a violation of U.S. neutrality, despite an argument that the law of nations required prize claims to be heard in the courts of the captor. Iredell in Talbot relied on international law to support jurisdiction. Talbot, 3 U.S. at 159–60 (Iredell, J.). 3 U.S. 121, 129 (1795). The schooner taken as a prize remained at a French port in the Caribbean, but the privateer came into Philadelphia where the schooner’s owner filed a libel against it. See id. at 122. The Supreme Court also noted that the ship was a French warship and thus “not amenable before the tribunals of neutral powers.” Id.; cf. The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812), discussed infra pp. 39–40. Talbot v. Seeman, 5 U.S. 1, 43 (1801) (“the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations”). Talbot construed an act of Congress providing for salvage in cases of recapture not to apply to the recapture of neutral vessels because the law of nations did not provide for salvage in such cases. 6 U.S. 64, 118 (1804). Schooner Charming Betsy construed the Non-Intercourse Act prohibiting commerce with France not to apply to a shipowner, born in Connecticut but long resident on the Danish island of St. Thomas, in order to avoid a possible violation of neutral rights.

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B. The Territorial Reach of Statutes A notable application of the Charming Betsy presumption during this period concerned the territorial reach of legislation. In the late eighteenth and early nineteenth centuries, the law of nations took a primarily territorial view of jurisdiction. The leading authorities on this topic – Huber and Story – agreed that within a nation’s territory its jurisdiction was exclusive and absolute but that outside a nation’s territory its laws generally had no binding force.258 Consistent with these rules, the Supreme Court interpreted U.S. customs laws not to apply extraterritorially in The Apollon.259 A U.S. customs collector seized a French ship that put into a Spanish port in Florida to avoid paying U.S. duties. Characterizing the seizure as “a clear violation of the laws of nations,”260 Justice Story held that it was not authorized by Congress. “The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens,” Story declared, and “however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons, upon whom the Legislature have authority and jurisdiction.”261 What constituted the territory of the United States was also (sometimes) determined by the law of nations. In United States v. Rice, the Court held that the British occupation of Maine during the War of 1812 precluded the United States from collecting customs duties there.262 “The sovereignty of the United States over the territory was . . . suspended, and the laws of the United States could no longer be rightfully enforced.”263 On the other hand, American occupation of Mexican territory did not automatically make it part of the United States. In Fleming v. Page, the Court held that even under American occupation the Mexican city of Tampico was still a foreign port, so that duties were owed on goods shipped from there to Philadelphia.264 Chief Justice Taney acknowledged that under the law of nations Tampico “was a part of the United States, and belonged to them as exclusively as the territories included in our established boundaries.”265 But whether Tampico was part of the Union was a different question that “did not depend upon the laws of nations, but upon our own Constitution and acts of Congress.”266 The law of nations limiting a nation’s jurisdiction to its own territory was subject to certain exceptions. One, noted in The Apollon, was that a nation could bind its own 258 259 260 261

262 263

264 265 266

See Huber, supra note 198, at 164; Story, supra note 199, §§ 18 & 20. 22 U.S. 362 (1824). Id. at 371. Id. at 370. The Court said something similar about the reach of a French ordinance in Rose v. Himely, 8 U.S. 241, 279 (1808) (“It is conceded that the legislation of every country is territorial; that beyond its own territory, it can only affect its own subjects or citizens.”). For discussion of Rose, see supra p. 25. 17 U.S. 246 (1819). Id. at 254. Arguing for the defendant, Daniel Webster cited a number of authorities on the law of nations. Id. at 253 n.2. Justice Story remarked that “[t]he authorities cited at the bar would, if there were any doubt, be decisive of the questions. But we think it too clear to require any aid from authority.” Id. at 255. 50 U.S. 603 (1850). Id. at 615. Id.; see also infra p. 43. In Cross v. Harrison, 57 U.S. 164 (1854), the Court held that ratification of the Treaty of Guadalupe Hidalgo made California part of the United States to which existing U.S. customs laws applied without need for further congressional action. See id. at 196. The Court also upheld imposition of import duties levied at San Francisco before the treaty as the exercise of a belligerent right. See id. at 189–92. Similar duties had been levied on goods imported into Tampico, Mexico during the American occupation, “which the usages of war justify when an army is operating in the enemy’s country.” Fleming, 50 U.S. at 616.


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citizens abroad.267 A second was for ships, which were considered floating parts of their own nations’ territories, and a third permitted extraterritorial jurisdiction over universal crimes like piracy.268 All three exceptions were applied in a series of cases interpreting Congress’s 1790 attempt to define and punish piracy and other crimes on board ships.269 “[T]he general words” of the statute, Chief Justice Marshall reasoned, “ought to be restricted to offences committed by persons who, at the time of committing them, were within the ordinary jurisdiction of the United States.”270 The act clearly applied “to persons on board an American vessel.”271 It also applied to American citizens in foreign vessels, but not to foreign subjects on the same ships.272 Finally, the act applied to pirates everywhere, for “[r]obbery on the seas is considered as an offence within the criminal jurisdiction of all nations.”273 A ship on the high seas could be treated as part of its own nation’s territory without creating any conflict of jurisdiction, but foreign ships in U.S. ports raised a thornier problem. In Brown v. Duchesne, the plaintiff brought suit for patent infringement against the master of the French ship fitted with an invention that the plaintiff had patented in the United States (but not in France) while the ship was docked in Boston.274 Chief Justice Taney first construed the constitutional authority to grant patents as “necessarily confined within the limits of the United States”275 and then concluded that “these acts of Congress do not, and were not intended to, operate beyond the limits of the United States.”276 Of course the French ship was currently within the limits of the United States, but application of the patent statute would “seriously embarrass the commerce of the country with foreign nations.”277 It might even interfere with the treaty power by effectively closing to foreign ships ports that a treaty had agreed to open.278 The Court concluded that Congress could not have intended such a result.

C. Foreign Sovereign Immunity The rule of territorial jurisdiction came into conflict with another practice of nations in The Schooner Exchange v. McFaddon,279 the seminal case on foreign sovereign immunity. The American schooner Exchange had been captured by the French and armed as a warship. Some time later, weather forced her to take shelter at Philadelphia, where her former owners filed a libel seeking her return. Chief Justice Marshall began with the propositions that “[t]he jurisdiction of the nation within its own territory is necessarily 267 268

269 270 271 272 273 274 275 276 277 278 279

See supra p. 38; see also Story, supra note 199, §§ 21–22 (noting the exception for citizens but limiting it to citizens who are also residents). These exceptions have led one scholar to characterize the early Court’s cases as creating a presumption against “extrajurisdictionality” rather than a presumption against extraterritoriality. See John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int’l L. 351 (2010). An Act for the Punishment of certain Crimes against the United States § 8, 1 Stat. 112, 113–14 (1790). United States v. Klintock, 18 U.S. 144, 151–52 (1820). United States v. Palmer, 16 U.S. 610, 630 (1818). United States v. Furlong, 18 U.S. 184, 196–97 (1820). Id. at 197. 60 U.S. 183 (1857). Id. at 195. Id. Id. at 197. See id. 11 U.S. 116 (1812).

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exclusive and absolute” and that limitations on that jurisdiction “must be traced up to the consent of the nation itself.”280 Such consent could be implied, however, from the “common usage” of nations.281 Marshall found a practice of not exercising jurisdiction over a foreign sovereign’s person, foreign ministers, foreign troops granted permission to pass through a nation’s territory, and friendly foreign warships entering a nation’s ports.282 He then applied the Charming Betsy presumption (without citation) to the statutes governing the jurisdiction of the federal courts, which “ought not, in the opinion of this Court, to be so construed as to give them jurisdiction in a case, in which the sovereign power has impliedly consented to wave its jurisdiction.”283 Of course, basing exceptions to jurisdiction of the courts on the consent of the territorial sovereign logically implied that consent could be withdrawn, a point Marshall made explicit: “Without doubt, the sovereign of the place is capable of destroying this implication [of immunity]. He may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals.”284 The discretionary aspect of foreign sovereign immunity later led Justice Story to characterize the doctrine as standing “upon principles of public comity.”285 “[A]s such consent and license is implied only from the general usage of nations, it may be withdrawn upon notice at any time, without just offence, and if afterwards such public ships come into our ports, they are amenable to our laws in the same manner as other vessels.”286

D. Declarations of War As discussed previously, the Court held in Brown v. United States that enemy property on land could be confiscated only pursuant to a law passed by Congress.287 This conclusion led the Court to consider whether Congress’s declaration of the War of 1812 was a law authorizing the seizure. Acknowledging that the law of nations gave belligerent nations the right to confiscate enemy property,288 Chief Justice Marshall found that a practice had developed of not doing so immediately and allowing enemy aliens a chance to withdraw their property.289 In the absence of language to the contrary, Marshall reasoned, the declaration of war should be construed not to violate this practice.290 Marshall framed the question as one of constitutional interpretation: “In expounding the constitution, a construction ought not lightly to be admitted which would give to a declaration of

280 281 282 283 284

285 286 287 288 289 290

Id. at 136. Id. Id. at 137–46. Id. at 146. Id. Whether immunity could be removed by the executive alone or only with congressional authorization, Marshall did not say. The Court’s decision two years later in Brown v. United States, 12 U.S. 110 (1814), that an act of Congress was required to depart from the much weaker usage that enemy property was not immediately confiscated by a declaration of war, seems to suggest the latter. The Santissima Trinidad, 20 U.S. 283, 353 (1822). Comity was an inherently discretionary doctrine most often used at the time to recognize foreign law and foreign judgments. See supra p. 29. 20 U.S. at 353. 12 U.S. 110, 123 (1814); see supra pp. 34–35. Brown, 12 U.S. at 122. Id. at 123–25. As discussed, see supra p. 34, Justice Story in dissent disagreed with Marshall’s view of the practices of nations. See id. at 125–28.


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war an effect in this country it does not possess elsewhere.”291 But the case involved no constitutional limitation on Congress,292 and the ultimate question was the effect of the act declaring war.

E. Constitutional Interpretation In some cases, the Supreme Court looked to international law to help interpret the Constitution,293 although its practice was more scattered and opportunistic than with statutory interpretation. With respect to the division of authority between the federal government and the States, for example, the Supreme Court sometimes thought the law of nations was relevant and sometimes thought it was not. In Chisholm v. Georgia, one of the Court’s earliest cases, the seriatim opinions generally denied that the law of nations should be used to determine whether a State could be sued in federal court.294 “From the law of nations little or no illustration of this subject can be expected,” Justice Wilson wrote. The United States was not a “society” of “States and Governments” to which the law of nations applied; it was “a nation.”295 At the same time, Justice Wilson noted that the law of nations governed disputes between the States and that subjecting them to the jurisdiction of the federal courts would help ensure enforcement of that law.296 Similarly, Chief Justice Jay observed that policing “the conduct of each State, relative to the laws of nations, and the performance of treaties” was one of the reasons the Constitution created “a national judiciary . . . responsible to the whole nation.”297 On other questions of federalism, however, the Supreme Court did look for guidance to the law of nations.298 The Constitution prohibits States from making treaties but allows States, with the consent of Congress, to enter into “Agreement[s] or Compact[s] with another State, or with a foreign Power.”299 In Poole v. Fleeger’s Lessee,300 the Court held that Kentucky and Tennessee (with the consent of Congress) could constitutionally agree on a border between them. “It cannot be doubted, that it is a part of the general right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories,” Justice Story wrote for the Court.301 “This is a doctrine universally recognised in the law and practice of nations. It 291 292 293 294 295

296 297

298 299 300 301

Id. at 125. Marshall acknowledged that Congress (though not the President) had authority to depart from the practice. See id. at 128–29; supra pp. 34–35. For additional examples, see Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006). 2 U.S. 419 (1793). Id. at 453 (Wilson, J.). Justice Iredell, the lone dissenter, agreed on this point: “No part of the Law of Nations can apply to this case, as I apprehend, but that part which is termed ‘The Conventional Law of Nations.’” Id. at 449. In other words, at most, the Constitution might be analogized to a treaty among the States. Id. at 465 (Wilson, J.). Id. at 474 (Jay, C.J.). Chisholm’s holding that a State could be sued in federal court by a citizen of another State was reversed by the Eleventh Amendment. For an argument that the Eleventh Amendment should be interpreted in light of international law, see Thomas H. Lee, Making Sense of the Eleventh Amendment: International Law and State Sovereignty, 96 Nw. U. L. Rev. 1027 (2002). It also treated the States as independent sovereigns for the purpose of the conflict of laws. See supra p. 29. U.S. Const. art. I, § 10. 36 U.S. 185 (1837). Id. at 209.

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is a right equally belonging to the states of this Union, unless it has been surrendered, under the constitution of the United States.”302 Holmes v. Jennison,303 another Compact Clause case, posed a much tougher question. Despite the absence of an extradition treaty between Canada and the United States or the consent of Congress, the governor of Vermont ordered that Holmes (a Canadian citizen) be turned over to Canadian authorities to stand trial for murder. Chief Justice Taney, writing for himself and three others, quoted Vattel on the meanings of “treaty,” “compact,” and “agreement,”304 finding that Vermont had made a prohibited “agreement” to extradite Holmes even if it was not written or long lasting.305 “It was one of the main objects of the Constitution to make us, so far as regarded our foreign relations, one people, and one nation,” he added, and “[t]he power now claimed for the states, is utterly incompatible with this evident intention.”306 But four of Taney’s colleagues disagreed. Justice Philip Barbour conceded that “by the usages of nations, as well as by the practice of the United States, the surrender of fugitives is deemed to be a proper subject for treaty,” but Vermont had violated no treaty because the United States had not made one.307 Justice Henry Baldwin quoted Vattel on the right of a sovereign state to forbid the entry of foreigners.308 Although the Supreme Court was equally divided, the Vermont Supreme Court, remarkably, reversed itself after reading the opinions and let Holmes go.309 The Court also relied on the law of nations to help define the respective spheres of the federal government and the States under the Commerce Clause. Concurring in the seminal case of Gibbons v. Ogden, Justice Johnson wrote that “the definition and limits of that power [to regulate commerce] are to be sought among the features of international law.”310 But where to draw the lines was not always clear. In City of New York v. Miln, the Court upheld the constitutionality of a state law requiring ships to report the names of arriving foreign passengers, characterizing the law not as a regulation of commerce but as an exercise of the State’s police power.311 “[A] state has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation,” the Court said, “where that jurisdiction is not surrendered or restrained by the constitution of the United States.”312 And the Court quoted Vattel to show that sovereign states had authority to forbid the entry of foreigners or to place conditions on it.313 In contrast, in The Passenger Cases, the Court held that state taxes on arriving 302 303 304 305 306 307 308

309 310 311 312 313

Id. 39 U.S. 540 (1840). Id. at 572 (Taney, C.J.) (quoting Vattel, supra note 10, Book II §§ 152–52 & 206). Id. at 572–73 (Taney, C.J.). Id. at 575 (Taney, C.J.). Id. at 589 (Barbour, J.). Id. at 616 (Baldwin, J.) (quoting Vattel, supra note 10, Book II §§ 94 & 100). Justice John Catron thought Vermont had not made an agreement, id. at 595–96 (Catron, J.), while Justice Smith Thompson thought the Court lacked jurisdiction and did not reach the merits. Id. at 580 (Thompson, J.). Id. at 597 (reporter’s note). 22 U.S. 1, 227 (1824) (Johnson, J., concurring). 36 U.S. 102, 132 (1837). Id. at 139. Id. at 132 (quoting Vattel, supra note 10, Book II §§ 94 & 100). In West River Bridge Co. v. Dix, 47 U.S. 507, 531–32 (1848), the Court held that the power of eminent domain was inherent in every sovereign, without citing any authority, and that a State could exercise that power without violating the Contracts Clause of the Constitution.


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foreigners were an unconstitutional regulation of commerce.314 One of the Justices in the majority noted that the Constitution’s Framers were familiar with “many valuable works upon trade and international law” and that “[t]heir knowledge . . . may well be invoked to measure the constitutional power of Congress to regulate commerce.”315 He looked to Martens’s Summary of the Laws of Nations to define both “commerce” and “imposts,”316 while one of the dissenting Justices again invoked Vattel to show that sovereign states had the right to exclude foreigners.317 Although the Court found international law relevant to some issues of federalism, it firmly denied that international law had anything to say about the separation of powers among the branches of the federal government. As noted, the question in Fleming v. Page was whether the Mexican city of Tampico was a foreign port for customs purposes while under U.S. occupation.318 Chief Justice Taney acknowledged that conquest made the city part of the United States under the law of nations.319 But “every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws.” Tampico’s relationship to the United States “did not depend upon the law of nations but upon our own Constitution and acts of Congress.”320 Under the Constitution, territory could only be added to the United States “by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war.”321 Fleming is consistent with Brown v. United States,322 where the Court decided which branch could seize enemy property purely as a matter of constitutional interpretation.323 In Fleming, as in Brown, the Court held that the authority to exercise the United States’ rights under international law belonged to Congress, not the President. Finally, near the end of this period, some Justices relied on international law to interpret the Constitution in the infamous Dred Scott case.324 Scott claimed that he became free when his master brought him to the free State of Illinois and to the territory of Minnesota, and Scott brought suit to enforce that freedom after his return to Missouri. A preliminary question was whether Scott was a “citizen” under the Constitution entitled to bring suit at all. Chief Justice Taney denied that he was, noting that “the negro race . . . , by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.”325 Justice Peter Daniel supported this interpretation with quotations from Vattel defining citizens as those born of citizens and distinguishing 314 315 316 317 318 319 320 321 322 323 324

325

48 U.S. 283 (1849). Id. at 416 (Wayne, J.). Id. at 416, 425 (Wayne, J.). Id. at 526, 529, 532 (Woodbury, J., dissenting). 50 U.S. 603 (1850); see supra p. 38. 50 U.S. at 615. Id. Id. 12 U.S. 110 (1814). See supra pp. 34–35. Dred Scott v. Sandford, 60 U.S. 393 (1857). See generally Sarah H. Cleveland, Foreign Authority, American Exceptionalism, and the Dred Scott Case, 82 Chi.-Kent L. Rev. 393 (2007); Mark Janis, Dred Scott and International Law, 43 Colum. J. Transnat’l L. 763 (2005). Id. at 410. Taney also denied that “any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” Id. at 426.

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foreigners who are merely permitted to settle in a country.326 But while Taney relied on international law to construe the word “citizen,” he denied that it was relevant to the interpretation of the word “property” in the Fifth Amendment’s Due Process Clause. “[T]here is no law of nations standing between the people of the United States and their Government,” he wrote.327 That relationship was defined by the Constitution, “[a]nd no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved.”328

∗

∗

∗

In sum, during this period the Supreme Court articulated the Charming Betsy canon in broad terms and consistently applied it to a variety of statutes. Both the presumption against extraterritoriality and the doctrine of foreign sovereign immunity can be traced to the application of the canon during this period. The Court’s use of international law in constitutional interpretation appears more inconsistent, with the Court looking to the law of nations on some issues and expressly denying its relevance to others.

V. Continuity and Change to 1860 From the Supreme Court’s inception to 1860, the Court’s international law docket changed substantially, but the Court’s attitude toward international law remained fairly consistent. Up to the end of the War of 1812, the Court’s international cases – like U.S. foreign policy as a whole – involved delicate relations with more powerful and potentially or actually antagonistic European countries; they especially implicated U.S. efforts to avoid entanglement in the ongoing conflict between France and Britain, which lasted for virtually the entire period from 1792 to 1815.329 After the War of 1812, U.S. relations with Europe rested on a more secure footing. The Congress of Vienna, which concluded in June 1815, ended full-scale war in Europe for almost a century.330 Similarly, the 1815 Treaty of Ghent,331 formally ending the War of 326

327 328

329 330 331

Id. at 476–77 (Daniel, J., concurring) (quoting Vattel, supra note 10, Book I, §§ 212–13). Daniel neglected to mention Vattel’s observation in the very next section that the rule was otherwise in England “where the single circumstance of being born in the country naturalizes the children of a foreigner.” Vattel, supra note 10, Book I, § 214. 60 U.S. at 451. Id. Scott also raised conflict of laws questions concerning the territorial limits of state law and the recognition to be given to the laws of one State within the territory of another. Justices on both sides looked to international law because, once again, they viewed the States as analogous to foreign nations. See, e.g., id. at 462 (Nelson, J., concurring) (denying the applicability of a conflicts rule asserted by Huber on the ground that it “has not been admitted in the practice of nations, nor is it sanctioned by the most approved jurists of international law”); id. at 495 (Campbell, J., concurring) (“The relation of domestic slavery is recognized in the law of nations, and the interference of the authorities of one State with the rights of a master belonging to another, without a valid cause, is a violation of that law.”); id. at 534 (McLean, J., dissenting) (noting that “by the general law of nations, no nation is bound to recognize the state of slavery”); id. at 594 (Curtis, J., dissenting) (noting that “in the absence of positive law to the contrary, the will of every civilized State must be presumed to be to allow such effect to foreign laws as is in accordance with the settled rules of international law”). For discussion of the direct application of the law of nations with respect to the conflict of laws, see supra p. 29. See Michael Glover, The Napoleonic Wars: An Illustrated History 1792–1815 (1978). See Andreas Osiander, The States System of Europe, 1640–1990 (1994). Treaty of Ghent, U.S.-Gr. Brit., Dec. 24, 1814, 8 Stat. 218.


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1812, established a state of peace in the United States that lasted until the Civil War, with only brief interruptions during the Mexican-American War in 1846–48 and various local conflicts with Native American tribes. Thus, after 1815 issues involving military conflict receded into the background, and the Supreme Court became largely preoccupied with peacetime matters, especially issues arising from the westward expansion that dominated the nation’s attention during this period. Despite these significant changes, international law still featured prominently in the Court’s docket, and the Court exhibited substantial continuity in its attitude toward international law.

A. Preserving Independence: 1792 to 1815 Despite victory in the Revolutionary War, the weakness of the U.S. national government in foreign affairs under the Articles of Confederation led many American leaders to worry whether the United States could survive as a nation. The Constitution’s ratification in 1788 held hope of a more effective national foreign policy, but the nation’s international position remained perilous. Britain seemed not fully reconciled to losing its American colonies. The United States’ chief ally, France, was soon engulfed in its own revolution that, after France’s declaration of war against Britain in 1793, plunged most of Europe into almost continuous warfare until 1815.332 Because the major European nations had colonial outposts in North America and powerful ocean-going navies, at least initially the European conflict extended into American waters. And the United States was ill equipped to guard its own safety, with a small navy and almost nonexistent army. Navigating these multifarious threats became the central focus of U.S. foreign policy during this time. In this dangerous enterprise the U.S. Supreme Court played a substantial supporting role in helping the political branches pursue their foreign policy objectives, and international law played a central role in the Court’s decisions. The new Court issued its first substantive decision in 1792,333 only months before France’s declaration of war against Britain. In April 1793, President Washington issued a proclamation of neutrality, declaring the U.S. policy “to pursue a conduct friendly and impartial toward the belligerent Powers.”334 Although the Court declined Washington’s request for a formal advisory opinion regarding the international laws of neutrality, the 1794 decision Glass v. The Sloop Betsey interpreted federal admiralty jurisdiction sufficiently broadly that many of those questions could be addressed in contested cases. After Glass, the Court decided approximately two dozen admiralty cases involving international law that were intimately linked to the U.S. effort to preserve neutrality in the war between Britain and France.335 Most involved claims by British shipowners seeking recovery of merchant 332

333 334 335

See Glover, supra note 329. Napoleon renounced his claim to the French throne in April 1814, accepting exile in Elba. The European powers concluded a peace treaty in May of that year. Napoleon returned briefly from exile in 1815 and launched a new military campaign, suffering his final defeat at Waterloo in June 1815. A second peace treaty in November 1815 finally ended the saga of the Napoleonic Wars. Georgia v. Brailsford, 2 U.S. 402 (1792). Proclamation of Neutrality (Apr. 22, 1793), reprinted in 1 American State Papers: Foreign Relations, at 140 (Walter Lowrie & Matthew St. Clair Clarke eds., 1833). See Sloss, supra note 75 (analyzing twenty-four admiralty cases that the Supreme Court decided between 1794 and 1797).

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vessels captured by French privateers. French diplomats repeatedly urged the United States to resolve these disputes through diplomatic channels, but U.S. diplomats rebuffed the French, telling them to raise their arguments in U.S. courts. Consequently, U.S. courts, including the Supreme Court, became critical fora for resolving disputes between the British and French under international law.336 Moreover, the federal executive branch placed its trust in the judiciary to resolve these disputes in a manner that would maintain American neutrality.337 The Court also supported efforts to mend relations with Britain by acting aggressively to enforce the 1783 peace treaty against the States in Ware v. Hylton. Ultimately, the United States’ accommodation with Britain, reflected in the Jay Treaty, contributed to the outbreak of the low-intensity “quasi-war” with France from 1797 to 1800.338 The United States concluded a new treaty with France in 1800,339 ending the quasi-war, and for the next decade the United States managed to avoid open conflict with European powers. Again the Court used its international law docket to support U.S. efforts to avoid conflict, most notably by articulating the rule that ambiguous statutes would be construed not to violate international law340 and (at the urging of the executive branch) taking a strong view of foreign sovereign immunity.341 Aggressive British policies intended to strengthen its position in the ongoing European war generated severe friction with the United States, leading to the War of 1812.342 Once war was declared, the Court faced a host of cases – mostly but not entirely admiralty cases – arising from the war’s conduct.343 In most of these cases the Court strongly supported the war effort by taking a broad view of the United States’ right to seize vessels associated with the enemy.344 At the same time, it construed the U.S. declaration of war consistently with international law in Brown v. United States and protected neutral rights in The Nereide.345 Neither case involved a direct confrontation with the political branches, but they, like a number of pre-war cases, showed the Court’s reluctance to countenance what it regarded as international law violations without clear direction from Congress. The end of the war, and the contemporaneous end of the Napoleonic Wars in Europe, produced a dramatically new geopolitical situation with significant long-term repercussions for the United States and for the Supreme Court. In the Battle of Trafalgar in 1805, 336 337 338 339 340

341 342

343

344 345

See id. at 171–83. See id. at 161–71. See Alexander DeConde, The Quasi-War: The Politics and Diplomacy of the Undeclared War with France, 1797–1801 (1966). Convention Between the French Republic and the United States of America, Sept. 30, 1800, 8 Stat. 178. Talbot v. Seeman, 5 U.S. 1 (1801); Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804); see also United States v. Schooner Peggy, 5 U.S. 103 (1801) (implicitly finding that a later-in-time treaty prevailed over an earlier statute). The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812). Key British policies included the seizure of American merchant ships and the forcible conscription of seamen from American merchant vessels to serve in the British Navy. See Donald R. Hickey, The War of 1812: A Forgotten Conflict 10–11 (1989). E.g., Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191 (1815); The Nereide, 13 U.S. 388 (1815). The principal non-admiralty case of the period was Brown v. United States, 12 U.S. 110 (1814). See supra pp. 34–35, 40–41. E.g., The Joseph, 12 U.S. 451 (1814); The Rapid, 12 U.S. 155 (1814). 12 U.S. 110 (1814); 13 U.S. 388 (1815).


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the British Navy destroyed French and Spanish naval forces, laying the foundation for British naval supremacy, which endured for more than a century.346 With the British Navy controlling shipping lanes in the Atlantic Ocean, “the only threat to the United States’ future prosperity could come from Britain itself.”347 After the War of 1812, British policy favored amicable relations with the United States,348 and with British naval power effectively protecting the Atlantic Coast from external threats, the United States was free to shift its focus away from Europe toward the vast North American continent.

B. Building the New Nation: 1816 to 1860 After 1816, the Supreme Court’s docket shifted significantly from war to peace. A few cases arising from the War of 1812 continued to appear on the Court’s docket until the early 1820s.349 Occasionally, the Court heard cases related to wars of independence in Latin America,350 and in the early 1850s it decided a handful of cases arising from the Mexican-American War.351 But these were the exceptions. In contrast to the preceding period, the vast majority of the Court’s international law decisions from 1816 to 1860 had little connection to matters of war or great power relationships. During this period, the United States was preoccupied with building a new nation and – especially toward the end of the period – resolving long-simmering tensions related to slavery. The Supreme Court played an important supporting role in the enterprise of nation-building, and international law featured prominently in many leading Supreme Court decisions. Driven by a vision of “manifest destiny,” the nation expanded across the continent. In 1815, the United States consisted of only eighteen States. By 1860, it had admitted fifteen more. Between 1816 and 1860, the United States acquired Florida from Spain (in 1819), annexed Texas (in 1845), acquired Oregon from Britain (in 1846), obtained California from Mexico (in 1848), and purchased additional land from Mexico in the 1853 Gadsden Purchase. Collectively, these acquisitions encompassed more land than the nation’s original territory. Acquisition of new territory and addition of new States involved displacement of Native Americans.352 The Court invoked the international law doctrine of discovery to find broad powers over Native American affairs in the federal government,353 while at the same time finding that the Native American nations retained sovereign rights against the individual States.354 These cases facilitated a centralized policy with respect to Native 346 347 348

349 350 351 352

353 354

R.R. Palmer & Joel Colton, A History of the Modern World 421 (8th ed. 1995). Paul Kennedy, The Rise and Fall of the Great Powers 178 (1989). See Exchange of Notes Relative to Naval Forces on the American Lakes, U.S.-G.B., Apr. 28–29, 1817 (Rush-Bagot Treaty), 8 Stat. 231 (eliminating naval forces on the lakes between the United States and British Canada). E.g., The Amiable Isabella, 19 U.S. 1 (1821). E.g., Williams v. Suffolk Ins. Co., 38 U.S. 415 (1839); The Santissima Trinidad, 20 U.S. 283 (1822). E.g., Fleming v. Page, 50 U.S. 603 (1850). See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 25–47 (2002) (discussing Supreme Court jurisprudence on Native Americans in the Marshall and Taney years and the role of international law in this context). Johnson v. M’Intosh, 21 U.S. 543 (1823); United States v. Rogers, 45 U.S. 567, 572 (1846). Worcester v. Georgia, 31 U.S. 515 (1832).

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American affairs, assuring that neither the courts nor the States would interfere with U.S. policy and setting the stage for the national government’s forcible dislocation of the Native Americans to create additional space for white settlers.355 European inhabitants who owned property before U.S. territorial acquisitions also asserted title to land in opposition to the United States’ title. The treaties by which the United States acquired Louisiana, Florida, and California included provisions protecting the property of individuals who held title to land under the prior sovereign, while land that was not privately owned became U.S. property.356 The Court decided about one hundred claims under these treaties by applying international law.357 By deciding title disputes, the Court’s decisions helped promote private settlement of vast territories acquired by treaty. The large influx of new European immigrants was another aspect of nation-building during this period. The federal government generally adopted an open-door policy that encouraged new immigrants, but state governments passed a variety of measures restricting immigration.358 The Taney Court decided two major cases during this period addressing the validity of such laws: The Passenger Cases359 and City of New York v. Miln.360 In both cases, the Court relied partly on international law to frame its analysis.361 The rapid growth of the U.S. economy during this period also contributed to the building of the nation. The Court’s decision in Swift v. Tyson362 may have helped fuel the growth of a national economy by endorsing federal judges’ application of general law, rather than state law, in common law commercial cases.363 The most divisive political issue during this period – and the greatest threat to nationbuilding – was the ongoing controversy over slavery. Congress enacted legislation in 1807 that prohibited U.S. citizens from participating in the slave trade.364 For the next half-century, Great Britain made the campaign to abolish the slave trade a centerpiece of its international diplomacy.365 “By the early 1840s, more than twenty nations – including all the Atlantic maritime powers – had signed international treaties committing to the abolition of the trade.”366 Despite the gradual emergence of an international norm 355 356 357

358 359 360 361 362 363

364 365 366

See Cleveland, supra note 352, at 41–42. See supra pp. 19–20. When Roger Taney was Chief Justice (1836–64), the Supreme Court decided about fifty real property cases arising from the 1819 Florida treaty with Spain, and another fifty real property cases arising from the 1803 Louisiana treaty with France. Carl B. Swisher, The Taney Period: 1836–64: History of the Supreme Court of the United States 746–48 (1974). During the Marshall Court’s final decade (1826–35), the Court decided nine real property cases related to the Florida treaty and two such cases related to the Louisiana treaty. See Sloss, supra note 69, at 54–56. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776–1875), 93 Colum. L. Rev. 1833 (1993). 48 U.S. 283 (1849). 36 U.S. 102 (1837). See supra pp. 42–43. 41 U.S. 1 (1842). See Kent Newmyer, History over Law: The Taney Court, 27 Stan. L. Rev. 1373, 1375 n.28 (1975) (“Swift v. Tyson was Story’s most ambitious effort to facilitate national economic growth through uniform commercial law.”). Act of Mar. 2, 1807, ch. 22, 2 Stat. 426. See Jenny S. Martinez, Antislavery Courts and the Dawn of International Human Rights Law, 117 Yale L.J. 550, 555–79 (2008). Id. at 555–56.


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prohibiting the slave trade, the domestic practice of slavery in the United States continued. The Supreme Court applied international law to help resolve several cases involving the slave trade during this period; in these cases the Court generally freed at least some of the slaves.367 The Court also applied international law to help resolve wholly domestic disputes about slavery; in these cases the Court consistently upheld the rights of slave owners.368

C. A Consistent Attitude Despite significant changes in the national policy agenda, and corresponding changes in the Court’s docket, several features of the Court’s international law jurisprudence remained fairly constant during the seven decades from 1792 to 1860. First, and most fundamentally, the Court treated international law as a source of legal rules that courts could apply to help resolve issues presented in litigation. The Court decided approximately two hundred cases, spread fairly evenly throughout the period, in which it relied on international law. Backed by the Constitution’s express description of treaties as part of the “supreme Law of the Land,” the Court from Ware v. Hylton369 in 1796 through the various property cases of the mid-nineteenth century consistently regarded treaties as a source of legal rules for courts to apply. In keeping with British and European practice, the Court similarly regarded customary international law as a direct source of rules of decision in admiralty cases, and as the nineteenth century progressed it embraced private international law in fields such as commercial law and conflict of laws. Elsewhere its direct embrace of customary international law was more circumspect: for example, although a number of the early Justices signaled comfort with the prosecution of common law crimes derived from (among other sources) international law, the Court ultimately rejected that approach (along with the broader idea of federal common law crimes as a whole). Nonetheless, the Court aggressively applied international law, including in criminal cases, when directed to do so by statute (as for piracy). And perhaps of greater significance, the Court consistently deployed both treaties and customary international law as an interpretive tool to construe statutes through what later became known as the Charming Betsy canon. The Court never suggested in these cases that the judiciary’s role in applying international law differed significantly from the judiciary’s role in applying domestic law. Of course, the Court recognized limits on judicial power, such as the political question doctrine, but the limits on the judiciary’s power to apply international law were broadly similar to the limits on the judiciary’s power to apply domestic law.370 The most notable exceptions to this general proposition were cases where international law itself limited the exercise of judicial power (e.g., cases where international law barred the exercise of jurisdiction over vessels captured by foreign privateers).371 Second, the Court frequently invoked international law to constrain the exercise of governmental power. Beginning with Ware, it consistently invalidated state laws that 367 368 369 370 371

See, e.g., The Amistad, 40 U.S. 518 (1841); The Antelope, 23 U.S. 66 (1820). See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857); Prigg v. Pennsylvania, 41 U.S. 539 (1842). Ware v. Hylton, 3 U.S. 199 (1796). See supra pp. 15–16. See Sloss, supra note 75, at 177–79 (analyzing cases from the 1790s).

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violated the nation’s treaty obligations.372 Further, although the Court never invalidated a federal statute on the grounds that it violated international law, and indeed indicated that Congress could legislate contrary to international law if it wished, the Court throughout the period routinely ruled against the federal executive branch on the basis of international law. Most commonly, these cases involved the Court’s disagreement with the executive branch’s interpretation or application of a treaty.373 In Schooner Charming Betsy, the Court found executive branch action unauthorized because the Court construed a federal statute not to violate customary international law.374 And in at least one case, Brown v. United States,375 the Court indicated (although the question was not directly presented) that customary international law would limit executive action directly. During this period, the Court did not suggest that courts owed deference to the executive branch in interpreting international law. A third consistent theme during this period was that the Court recognized international law as a source of rights for private parties. This was most strikingly true for treaties, which the Court let private litigants invoke in the same manner as statutes.376 It was also true of customary international law, at least on the familiar ground of admiralty cases and transnational commercial interactions among private parties, in which private rights were frequently adjudicated.377 Fourth, throughout this period, the Supreme Court generally strove to facilitate compliance with the nation’s international legal obligations or, at least, to avoid noncompliance. Of course, it acted within existing institutional and political constraints; thus it backed away from the early idea of common law criminal prosecutions of international law violators, and it avoided direct confrontation with Congress over international law. But it acted firmly to prevent state violations of treaties. Moreover, promoting national compliance with international obligations was the core idea underlying the Charming Betsy canon of statutory interpretation378 and the “good faith” canon of treaty interpretation.379 There was a broad consensus that the courts shared responsibility for upholding the nation’s obligations and its honor when matters implicating international law came within their jurisdiction. This vision of the judiciary’s role in applying international law was a consistent theme during the pre–Civil War period. Finally, the Court generally worked cooperatively with the legislative and executive branches in international cases to promote policies they all agreed were in the national interest. In the Court’s first decades, this consisted primarily of supporting efforts to maintain neutrality and avoid offending European powers. Once national priorities turned more to nation-building and westward expansion, the Court’s cases promoted federal supremacy in Indian affairs, property rights in the new territories, and more uniform rules in commercial law and other matters of private international law. The Court did contest executive policy in a number of cases – most frequently where the 372 373 374 375 376 377 378 379

As noted, with the possible exception of interstate disputes, the Court did not invalidate state laws conflicting with customary international law. See supra pp. 30–31. See supra p. 17. Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804). 12 U.S. 110 (1814); see supra pp. 34–35. See, e.g., Owings v. Norwood’s Lessee, 9 U.S. 344, 348 (1809). See supra pp. 23–25, 27–28. See supra p. 37. See supra p. 16.


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government claimed for itself land or other property that the Court thought belonged to a private party. On the whole, however, the period reflects a set of shared international priorities among the branches.

∗

∗

∗

But this is just the beginning of the story. As the United States survived its Civil War and rose to be a regional power and then a superpower, the issues that came before the Supreme Court continued to change. The Court’s approaches to international law also changed in some ways, while remaining consistent in others. The Chapters that follow chart the Court’s journey over the next 150 years – a journey that continues today.

II From the Civil War to the Turn of the Century

2 Treaties in the Supreme Court, 1861–1900 Duncan B. Hollis∗

From the great tumult of the Civil War to the emergence of a new American empire four decades later, the Supreme Court’s record on treaties suggests both continuity and change. Between 1861 and 1900, the Court continued to apply treaties frequently, interpreting them as supreme law that private parties could often invoke, while acknowledging a subclass of treaties that required legislative action before warranting judicial attention. At the same time, the Court’s treaty doctrine did change. Instead of disavowing earlier holdings, however, change came via evolution: through more nuanced elaborations of existing doctrine and the creation of new rules for treaty issues that the Court had not previously addressed or resolved. In terms of continuity, the Court still dealt frequently with treaties; from 1861 to 1900, 136 of its opinions involved some treaty question.1 The Court regularly applied treaties as law when parties raised claims or defenses that turned – in whole or in part – on treaty provisions. Thus, the Court consistently allowed individuals to make property claims based on perfected titles granted via treaty. At the same time, the Court still declined to apply treaty provisions where it identified jurisdictional or political constraints to judicial review. During the period, the Court also affirmed the notion first articulated in Foster v. Neilson that certain treaty provisions – those deemed “non-self-executing” – require congressional “execution” via legislation in lieu of direct judicial enforcement.2 And if asked to give meaning to treaties, the Court often continued to rely on the canons of good faith and liberal interpretation. Moreover, although the period witnessed fewer tensions ∗

1

2

Associate Dean for Academic Affairs and Associate Professor of Law, Temple University Beasley School of Law. I thank Pilar Castillo, Elizabeth Early, Sarah Happy, and David Struwe for invaluable research assistance. Of these cases, thirty-seven involved treaties with Native Americans. Although foreign relations law scholars often segregate U.S. “foreign” treaties from those with Native Americans, I have not done so here. Before 1871, when Congress ended treaty making with Native Americans, the United States concluded hundreds of these treaties. Act of Mar. 3, 1871, 16 Stat. 566; Francis Paul Prucha, American Indian treaties 1 (1995) (from 1778 to 1868, there were 367 ratified Native American treaties). Despite special interpretative accommodations – discussed later – the Court generally regarded these treaties as federal law and thus equivalent to treaties with foreign powers. See infra p. 82. Accordingly, I view the Court’s treatment of Native American treaties as a significant and important component of U.S. treaty doctrine from 1861 to 1900. See Foster v. Neilson, 27 U.S. 253 (1829).

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between treaties and state law, when such issues did arise, the Court maintained the concept of treaty supremacy it first articulated in Ware v. Hylton.3 Even as the Court demonstrated fidelity to earlier treaty rulings and practices, however, its treaty doctrine was far from static. It adopted more nuanced visions of the concept of non-self-executing treaties and private party treaty claims. Most importantly, the Court clarified the status of treaties as federal law. It equated them to statutes, articulating a “later-in-time” rule, under which, in the event of conflict, the later statute (or treaty) governs. Alongside preexisting interpretive methods, the Court began to hint at theories of deference that gave weight to the political branches’ views. In some cases, the Court moved away from interpretive canons entirely to more “restrictive” or “textualist” methods, focusing only on what the agreed text did (or did not) say. The Court also refined treaty supremacy by identifying treaty procedures and provisions that did not supplant state law. This chapter assesses continuity and change in the Court’s treaty doctrine between 1861 and 1900 in two steps. First, Part I briefly assesses developments that may explain why the Court’s treaty doctrine evolved beyond its pre-1861 contours. With those ideas as a foundation, Part II explores the Court’s case law on five enduring issues of treaty law: (1) private rights and judicial remedies, (2) treaties and federal statutes, (3) self-executing treaties, (4) treaty interpretation, and (5) treaties and state law. On each of these issues, the Court struck a different balance between continuity and change. Taken together, however, they reveal a more nuanced – and some might say less respectful – vision of treaties’ place in the U.S. constitutional system at the century’s end.

I. Accounting for Change: Shifting Circumstances and the Court’s Treaty Doctrine Why did the Court’s treaty doctrine evolve so much after the Civil War? Certainly, some changes were endogenous. With the passage of time and a docket regularly raising treaty questions, it is not surprising that the Court would explore the application of earlier opinions to new facts and new treaties. New questions were bound to arise as well. As it distinguished some of the new cases from the old, a more elaborate and nuanced set of treaty rules emerged. Similarly, the Court’s composition may account for some of the changes (and some of the continuity) on treaty questions. Justice Stephen Field, for example, served on the Court for almost the entire period under review (1863–1897).4 His opinions often served as a bellwether on the Court’s continuation, elaboration, or expansion of treaty doctrine, such as the later-in-time rule, self-execution, deference in treaty interpretation, and treaty supremacy over the States.5 It would be a mistake, however, to limit explanations of the Court’s late-nineteenthcentury treaty doctrine to its docket or personnel. Looking beyond the Court’s chambers, 3 4 5

See Ware v. Hylton, 3 U.S. 199 (1796). For an account of Justice Field’s role on the Court, see Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age 10 (1997). See, e.g., In re Ross, 140 U.S. 453, 475 (1891) (deference); Geofroy v. Riggs, 133 U.S. 258, 266 (1890) (treaty supremacy); The Chinese Exclusion Case, 130 U.S. 581, 600–01 (1889) (later-in-time rule); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (self-execution); Baldwin v. Franks, 120 U.S. 678, 703 (1887) (Field, J., dissenting) (self-execution); Chew Heong v. United States, 112 U.S. 536, 562 (1884) (Field, J., dissenting) (later-in-time rule).

Treaties in the Supreme Court, 1861–1900

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significant developments in domestic politics, foreign relations, and jurisprudence offer alternative lenses through which to assess the Court’s pronouncements. Three shifts warrant special mention: (1) the rise of Congress, (2) increasing attention to non-European relations, and (3) the prevalence of positivism in legal thought.6

A. The Rise of Congress Writing in 1885, then-Professor Woodrow Wilson called Congress “unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power” within the United States.7 Wilson’s claim had particular salience in the treaty context; throughout this period, Congress repeatedly exercised its legislative powers to interpret, implement, ignore, or even abrogate U.S. treaty commitments.8 In 1871, Congress ended new treaty relations with Native Americans in favor of a system by which it controlled those relations directly.9 At the same time, Congress began to authorize more international agreements under its own authority in lieu of the President’s exercise of the Article II, Section 2 treaty-making power.10 Taken together, these congressional assertions of power generated new questions for the Court about the status of treaties as federal law. From the Framing forward, the status of treaties vis-à-vis the States had generated substantial political and judicial attention. Preventing state noncompliance with U.S. treaties (and the wars that might result) served as a major driver for the 1787 Constitutional Convention and the Supremacy Clause’s inclusion of treaties within the “supreme Law of the Land.”11 The Court’s early decisions protected U.S. treaty compliance by repeatedly ruling that the Constitution made treaties federal law that trumped conflicting state law.12 With the Union victory in the Civil War, questions of federalism in treaty making 6

7 8

9 10 11 12

I do not mean to exclude other possible explanatory perspectives, such as the nineteenth-century shift from monist conceptions (viewing international law and the U.S. constitutional structure as one single legal system) to dualist perspectives (treating international law and U.S. law as distinct systems, each governed by its own rules of recognition). See Louis Henkin, Implementation and Compliance: Is Dualism Metastasizing?, 91 Am. Soc’y Int’l L. Proc. 515, 515 (1997). Alternatively, Tim Wu has suggested that judicial enforcement during this period depended on which government actor (State, Congress, Executive) was alleged to have breached. Tim Wu, Treaties’ Domains, 93 Va. L. Rev. 571, 573–74 (2007). Woodrow Wilson, Congressional Government 11 (15th ed. 1900). By the century’s end, however, Wilson acknowledged a shift to more power in the Executive. Id. at xii–xiii. Some might question whether Congress can truly “interpret” treaties, given conventional understandings that the judiciary and the executive divide the treaty interpretation power. I believe, however, that all three branches have this power. Congress’s interpretive power is a function of its power to implement treaties via legislation, because treaty implementation must rest – implicitly or explicitly – on an interpretation of what the treaty requires or allows. Thus, when Congress enacted statutory procedures recognizing property rights guaranteed by treaties of cession, Congress presumably did so because it interpreted the treaty to (a) require recognition of certain property rights, and (b) allow (or at least not foreclose) specific procedures to determine which rights warranted that recognition. See, e.g., Ely’s Adm’r v. United States, 171 U.S. 220, 239–41 (1898). Congress’s additional power to abrogate a treaty complicates any analysis of this interpretive power. But it does not follow that simply because Congress can override a treaty, it lacks the power to interpret that treaty when it decides to implement the instrument instead. See supra p. 55, n. 1. See, e.g., Tariff Act of 1890, §3, 26 Stat. 612 (delegating tariff bargaining authority to the President); Field v. Clark, 143 U.S. 649 (1892) (finding the 1890 Tariff Act did not invade the treaty power). Chapter 1, pp. 9–10, 11–12. Id., pp. 13–14.

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became less frequent and less controversial.13 Still, the Court clearly regarded treaties as federal law when it came to the States. In 1866, for example, the Court had little trouble concluding that Kansas’s revenue laws could not displace U.S. treaty commitments to Native Americans.14 By legislating on issues that affected U.S. treaties – for example, setting tariffs, limiting immigration, and setting up processes for resolving international claims – Congress introduced a different issue: how treaties function as federal law in relation to Congress.15 Of course, questions about Congress’s relationship to treaties arose well before the Civil War.16 Yet Congress’s greater power after the war – and a willingness to use it – placed these questions squarely before the Court. Legislating in conflict with U.S. treaty commitments, Congress generated cases asking if statutes trumped treaties or vice versa. The Court’s answer – treaties and statutes are equivalent, leaving the later-in-time rule to govern in the event of conflicts – effectively accommodated Congress’s claim to power over U.S. policy at home and abroad.17 Of course, it is difficult to know whether Congress’s power at the time influenced the Court’s adoption of this rule; in other contexts, the Court had shown a willingness to push back against perceived congressional overreaching, most notably in the Civil Rights Cases.18 Still, it is clear that by endorsing the later-in-time rule, the Court effectively enabled Congress to control the application of treaties via legislation.19 Thus, four years after it found Kansas’s revenue laws could not override a federal treaty, the Court concluded that later enacted federal revenue laws could do so.20 Even when Congress ostensibly legislated in compliance with a treaty, passing laws to interpret or execute its provisions, the Court still had to sort out how much judicial review to employ.21 For the most part, the Court deferred to acts of Congress on treaties.22 But it did not cede all power to Congress, resisting the idea that Congress could displace vested treaty rights or deprive the Court of the ability to decide what treaties (and statutes) 13

14 15 16 17

18 19

20 21

22

Although the Court saw a diminishing caseload, the Executive continued to address States’ rights questions about the treaty power. See Duncan B. Hollis, Executive Federalism: Forging New Federalism Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327, 1367 (2006). The Kansas Indians, 72 U.S. 737, 755–56 (1866). See infra Part II.B. See, e.g., John T. Parry, Congress, the Supremacy Clause, and the Implementation of Treaties, 32 Fordham Int’l L.J. 1209 (2009). Of course, having statutes always trump treaties would have accommodated congressional power to an even greater extent than the later-in-time rule. Nevertheless, the move to treaty equivalence was significant because it effectively ended any notions of treaty supremacy at the federal level – notions that had deep historical roots. See infra p. 73. 109 U.S. 3 (1883). See, e.g., John W. Foster, A Century of American Diplomacy 115 (1901). In at least one case, North American Commercial Co. v. United States, 171 U.S. 110, 131–34 (1898), the Court acknowledged that Congress could give the President authority to negotiate non-treaty agreements (a modus vivendi on seal hunts). The Cherokee Tobacco, 78 U.S. 616, 621 (1871). E.g.,Williams v. Heard, 140 U.S. 529, 538 (1891) (statute regulates distribution of awards from Alabama Claims Arbitration); Botiller v. Dominguez, 130 U.S. 238, 244–45 (1889) (statute establishes process for validating titles protected under 1848 peace treaty with Mexico); Benson v. McMahon, 127 U.S. 457, 459–60 (1888) (statute details U.S. extradition proceedings); Chew Heong v. United States, 112 U.S. 536, 550 (1884) (statute implements 1880 immigration treaty with China); see also Kinkead v. United States, 150 U.S. 483, 485 (1893); Ex parte Atocha, 84 U.S. 439, 445 (1873); Dent v. Emmeger, 81 U.S. 308, 310 (1872). See infra pp. 71–72, 83–84.


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mean.23 Nevertheless, understanding how active and dominant Congress became during the 1861–1900 era provides one way to appreciate the Court’s caseload and its willingness to authorize extensive congressional control over the interpretation, application, and even violation of U.S. treaties.

B. Moving beyond Europe The United States originally entered the nation-state system as a relatively weak and isolated power, facing recurring threats of war with (or subjugation to) great European powers such as Britain and France.24 In an effort to stabilize and solidify its position, the United States sought to conclude treaties with Britain, France, and Spain. These agreements account for the vast majority of the Court’s early treaty cases.25 Indeed, most of the Court’s initial treaty doctrines – reading treaties in good faith, voiding state laws inconsistent with U.S. treaties, affording foreign nationals treaty rights and judicial remedies – upheld U.S. treaty obligations (and national honor) with respect to these three clearly more powerful European nations.26 As it sought to stabilize its position vis-à-vis Europe, the United States also used treaties to secure its expansion across the continent. Thus, in addition to the Louisiana and Florida cessions, the United States used treaties to relocate Native American nations and to take California from Mexico.27 By 1861, moreover, the United States had begun to develop relationships outside of Europe, whether to its south in the Caribbean or Latin America, or to the Far East with China and Japan.28 The Court’s docket from 1861 to 1900 reflects this shift in treaty relations, with an influx of treaty cases involving non-European powers. These new treaty relationships operated on a different foundation than that underlying treaties with European powers. Here, the United States frequently held the upper hand 23

24 25

26

27

28

E.g., Jones v. Meehan, 175 U.S. 1, 32 (1899) (congressional resolution does not trump earlier lease made pursuant to vested treaty rights); Holden v. Joy, 84 U.S. 211, 247 (1872) (“Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political”); Reichart v. Felps, 73 U.S. 160, 165–66 (1868) (Congress has no power to nullify titles recognized by treaty); see also United States v. Jung Ah Lung, 124 U.S. 621, 632–33 (1888) (judiciary has cognizance to interpret treaty and implementing statutes). See, e.g., Thomas A. Bailey, A Diplomatic History of the American People 2–5, 52–53 (10th ed. 1980); Chapter 1, pp. 45–47. Chapter 1, p. 48 (between 1826 and 1861, the Court decided about one hundred cases involving real property in territory acquired by treaty from Spain and France). Of course, not all pre-1861 treaties involved major European powers. See Oldfield v. Marriott, 51 U.S. 146, 160–61 (1851) (listing pre-1846 treaties with various nations such as Russia, Sweden, Greece, Venezuela, Brazil, and Ecuador). See, e.g., The Passenger Cases, 48 U.S. 283 (1849) (finding 1794 Jay Treaty with Britain invalidates contrary state laws); United States v. Percheman, 32 U.S. 51 (1833) (finding 1819 treaty with Spain granted plaintiffs property rights); The Amiable Isabella, 19 U.S. 1 (1821) (invoking canon of good faith to interpret 1795 treaty with Spain); United States v. Schooner Peggy, 5 U.S. 103 (1801) (recognizing judicial duty to enforce 1801 treaty with France). See, e.g., Treaty with the Cherokee Indians, July 19, 1866, 14 Stat. 799; Treaty with the Kansas Indians, Oct. 5, 1859, 12 Stat. 1211; Treaty with the Creek Indians, June 14, 1866, 14 Stat. 785; Treaty of Peace, Friendship, Limits, and Settlement, U.S.-Mex., May 30, 1848, 9 Stat. 922. See, e.g., Commerce and Navigation Treaty, U.S.-Japan, Nov. 22, 1894; Treaty Concerning Immigration, U.S.-China, Nov. 17, 1880, 22 Stat. 826; Extradition Treaty, U.S.-Peru, Sept. 12, 1870, 18 Stat. 719; General Convention of Amity, Commerce, and Navigation and for the Surrender of Fugitive Criminals, U.S.-Dom. Rep., Feb. 8, 1867, 15 Stat. 473.

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as the more powerful party; non-European nations posed few – if any – real threats to U.S. national security (rather, the United States more likely posed threats to them).29 Sometimes this power differential contributed to a sense of U.S. paternalism, as in U.S. protection of its southern neighbors from European imperialism under the banner of the Monroe Doctrine or the “duty of protection” owed Native Americans.30 Sometimes the power differential contributed to decidedly different sentiments – racial prejudice, a sense of white superiority, and manifest destiny.31 Although the Court only occasionally distinguished European and non-European treaties, its opinions suggest real differences between them.32 Whether because of hostility or indifference in Congress, or biases within the Court, non-European treaties became the primary source for several rules that denied treaties the status of federal law or private rights. Between 1861 and 1900, the Court built the later-in-time rule – where later statutes deprived treaties of their status as federal law – on the backs of treaties with the Cherokee Nation, China, the Dominican Republic, Hawaii, and Mexico.33 In the Head Money Cases, the Court did hold that acts of Congress superseded treaties with several European nations, but only after noting that none of those nations had complained about the overriding statutes.34 More often, however, with nations such as Britain and France, the Court found later statutes conformed to earlier treaty obligations.35 Nor are these differences limited to later-in-time cases. The identity of the other party to the treaty may also explain differing treaty interpretations. For example, the Court found that the British extradition treaty prohibited criminal charges not identified in extradition proceedings on the same day it decided that the Peruvian extradition treaty did not prohibit a U.S. official from forgoing extradition proceedings entirely by simply 29 30

31

32

33

34 35

Bailey, supra note 24, at 4. Dexter Perkins, A History of the Monroe Doctrine 150–91 (1963); United States v. Kagama, 118 U.S. 375, 384 (1886) (United States owes duty of protection to dependent Native American nations). For Native Americans, the Court acknowledged a particularly large power differential. See, e.g., Choctaw Nation v. United States, 119 U.S. 1, 28 (1886). ´ See, e.g., Laura Gomez, Manifest Destinies: The Making of the Mexican American Race 17–18 (2007) (discussing citizenship and property rights for Mexicans after the Treaty of Guadalupe Hidalgo); Prucha, supra note 1, at 289–310 (discussing anti-treaty sentiments against Native Americans within Congress); Bailey, supra note 24, at 226, 392–94 (discussing manifest destiny and hostility to “Mexican marauders and Chinese coolies”); Walter LaFeber, The New Empire: An Interpretation of American Expansion 1860–1898, at 305–06 (1963) (discussing white supremacy and racism in the Far East in the 1880s and 1890s). See, e.g., Choctaw Nation, 119 U.S. at 28. In striking down a California statute, the Court in Chy Lung v. Freeman acknowledged differences in the consequences of U.S. noncompliance with a treaty with the likes of Great Britain in contrast to the 1868 Burlingame Treaty with China. See 92 U.S. 275, 279 (1876). However, the Court invoked the dormant Commerce Clause rather than the treaty to invalidate the challenged state law. Id. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899) (Congress has power to override finality of awards made pursuant to 1868 Treaty with Mexico); Ely’s Adm’r v. United States, 171 U.S. 220, 223–24 (1898) (statutes govern regardless of treaty with Mexico’s terms); Thomas v. Gay, 169 U.S. 264, 270–71 (1898) (later-in-time act of Congress supersedes Native American treaty); Fong Yue Ting v. United States, 149 U.S. 698, 728 (1893) (1892 act supersedes terms of 1880 immigration treaty with China); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889) (1888 act supersedes conflicting treaties with China); Whitney v. Robertson, 124 U.S. 190, 193–94 (1888) (act of Congress supersedes treaty with Dominican Republic); The Cherokee Tobacco, 78 U.S. 616, 621 (1870) (federal revenue laws supersede treaty with Cherokee Nation). 112 U.S. 580, 597 (1884). See, e.g., Geofroy v. Riggs, 133 U.S. 258, 266 (1890) (later-in-time statute consistent with rights provided under treaties with France); United States v. Rauscher, 119 U.S. 407, 423–24 (1886) (later-in-time statutes confirm Court’s finding of a rule of specialty in 1842 extradition treaty with Great Britain).


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kidnapping the defendant.36 Similarly, in this period cases of judicial deference to the political branches more often than not involved treaties with Native Americans, Mexico, and Japan.37 The Court also acknowledged special rules of interpretation for dependent Native American nations.38 Thus, the proliferation of non-European treaty cases offers some explanation for why the Court’s treaty doctrine evolved from 1861 to 1900. Of course, it is hard to measure how much a treaty partner’s identity mattered to the Court. On the one hand, we should not forget the pervasive racial prejudices against Native Americans, Chinese laborers, and Mexicans that existed at the time not only among the general population but also at the Capital and even on the Court itself.39 Similarly, the growing power of the United States reduced concerns that these non-European treaty partners could negatively affect the U.S. strategic position the way Britain, France, or Spain once could. On the other hand, the Court regularly invoked the Constitution and U.S. treaty commitments to protect non-European populations from racially charged discrimination.40 It also gave non-European treaties the benefits of old rules originally devised in the European context; thus, the Court found certain Chinese, Mexican, and Native American treaties warranted good faith and liberal interpretations.41 Similarly, rather than always invoking the laterin-time rule for non-European treaties, the Court harmonized a number of them with relevant acts of Congress.42 And in some opinions – like the Head Money Cases – the Court applied its new rules to old Europe.43 36 37

38 39

40

41

42

43

Compare Rauscher, 119 U.S. at 423–24, with Ker v. Illinois, 119 U.S. 436 (1886). See, e.g., United States v. Navarre, 173 U.S. 77, 79 (1899) (deference given to Congress and the Secretary of the Interior in interpreting treaty with Native Americans); Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80, 83 (1893) (concluding Congress did not grant judiciary authority to review claims under Mexican treaty while congressionally appointed body was evaluating them); In re Ross, 140 U.S. 453, 478–79 (1891) (deference given to State Department on consular authorities arising out of treaty with Japan); Frelinghuysen v. Key, 110 U.S. 63, 75 (1884) (deference given to Executive in interpreting 1868 Mexico Claims Convention); see also Ainsa v. United States, 161 U.S. 208, 222 (1896); United States v. Yorba, 68 U.S. 412, 423 (1864). See, e.g., Jones v. Meehan, 175 U.S. 1, 11 (1899); The Kansas Indians, 72 U.S. 737, 756 (1866); infra p. 82. Justice Field (who had earlier opposed discrimination by state law) discussed the problem of Chinese immigrant labor and the 1868 Burlingame Treaty with China in overtly racist terms. See, e.g., The Chinese Exclusion Case, 130 U.S. 581, 595–96 (1888) (“[T]he people saw, or believed they saw . . . great danger that at no distant day that portion of our country would be overrun by [Chinese laborers] unless prompt action was taken to restrict their immigration.”); Chew Heong v. United States, 112 U.S. 536, 568 (1884) (Field, J., dissenting) (“the Chinese cannot assimilate with our people, but continue a distant race amongst us, with institutions, customs and laws entirely variant from ours”). See, e.g., New York Indians v. United States, 170 U.S. 1, 22–24 (1898) (treaty provided grant to Native Americans that Executive could not deny); Yick Wo v. Hopkins, 118 U.S. 356, 368 (1886) (finding local ordinance applied in prejudicial manner to violate the Equal Protection Clause). See, e.g., New York Indians v. United States, 170 U.S. 1, 22–23 (1898); Chew Heong v. United States, 112 U.S. 536, 540 (1884); Best v. Polk, 85 U.S. 112, 116–17 (1873); United States v. Auguisola, 68 U.S. 352, 358–59 (1864). United States v. Gue Lim, 176 U.S. 459, 464–65 (1900) (reading congressional act consistent with earlier 1880 treaty with China); Jones v. Meehan, 175 U.S. 1, 32 (1899) (congressional resolution does not trump vested rights under treaty with Native Americans); Botiller v. Dominguez, 130 U.S. 238, 250 (1889) (treaty with Mexico not in conflict with later-in-time congressional enactments); Chew Heong v. United States, 112 U.S. 536, 560 (1884) (reading later congressional statutes to “faithfully meet our treaty obligations”); Powers v. Comly, 101 U.S. 789, 791 (1879) (no conflict between Persian treaty and later statute); see also New York Indians v. United States, 170 U.S. 1, 22–24 (1898); Holden v. Joy, 84 U.S. 211, 247 (1872). Head Money Cases, 112 U.S. 580, 597 (1884); see also Horner v. United States, 143 U.S. 570, 578 (1892) (later-in-time statute overrides treaty with Austria).

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Ultimately, the distinction between European and non-European treaty partners may best be viewed as a relevant – but not determinative – criterion. In evaluating the basis for the Court’s 1861–1900 treaty doctrine, having treaties with the likes of China, Native Americans, Japan, and Mexico helps explain, even if imperfectly, the Court’s greater willingness to override those treaties or limit their terms than it had previously shown with respect to treaties involving the great European powers.

C. The Prevalence of Positivism The Supreme Court’s treaty opinions from 1861 to 1900 devoted relatively little time to ontological questions – to what makes law “law.” And yet, this was a period of profound jurisprudential change. The Founders’ “law of nations” was predominantly naturalistic: it was a law above states and individuals that was binding on them through notions of “right reason.”44 But scholars like Grotius (and later Vattel) came to recognize that positive law – law made by sovereign states for sovereign states – had a role to play as well.45 By the middle of the nineteenth century, the consensual basis underpinning this positive law began to crowd out the earlier, naturalist explanations. For example, in coining the term “international law,” Jeremy Bentham had emphasized that its scope covered only “mutual transactions between sovereigns.”46 Bentham’s work in turn influenced John Austin, who adopted a more domestic theory premised on identifying a single sovereign whose command produced the “law.”47 Together, Bentham and Austin spawned a movement – positivism – that became the predominant jurisprudential approach by the end of the nineteenth century, with naturalism persisting in only a limited form.48 The rise of positivism had distinct impacts in international and domestic legal circles.49 Domestically, Austinian visions of a single “absolute” sovereign aligned well with the Court’s identification of Congress as the sole locus of sovereign authority for various issues – for example, immigration, foreign commerce, and Native American relations.50 And, like Austin, the Court also found that the inalienable nature of sovereign authority 44

45 46

47 48 49

50

See, e.g., David J. Bederman, The Spirit of International Law 5–9 (2002); Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int’l L.J. 1, 10–11 (1999); see also 4 W. Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769, at 66 (1979). Emerich de Vattel, The Law of Nations lv–lxvi (1758) (J. Chitty ed., 1854); Hugo Grotius, The Rights of War and Peace xx (1625) (Haakonssen & Tuck eds., 2005). See Jeremy Bentham, Introduction to the Principles of Morals and Legislation 327 (1781) (Free Press, 1970); see also M.W. Janis, Individuals as Subjects of International Law, 17 Cornell Int’l L.J. 61, 61–62 (1984). John Austin, The Province of Jurisprudence Determined 101 (1832) (Ashgate, 1998). Janis, supra note 46, at 64 (noting “the high tide of positivism” at end of nineteenth century); see also Bederman, supra note 44, at 7; Anghie, supra note 44, at 2. Thus, although positivists shared a common vision of law as the exclusive product of sovereign will, they – like the naturalists before them – diverged in their methods for developing this principle in greater detail. See, e.g., Duncan B. Hollis, Why State Consent Still Matters – Non-State Actors, Treaties and the Changing Sources of International Law, 23 Berkeley J. Int’l L. 137, 140 n.10 (2005). See, e.g., The Chinese Exclusion Case, 130 U.S. 581, 609 (1889) (characterizing power to exclude foreigners as incident of U.S. sovereignty that could not be transferred away); Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893) (describing the right to expel aliens as an “inherent and inalienable right of every sovereign”); Head Money Cases, 112 U.S. 580, 598 (1884) (confirming Congress’s exclusive power over foreign commerce); The Cherokee Tobacco, 78 U.S. 616, 619 (1870) (confirming Congress’s exclusive power over Native American tribes not within the limits of one of the States). Even at the time, however, this placement of sovereign power within Congress was contested. See, e.g., Yick Wo v.


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helped defeat any argument that treaties could restrict Congress from having the last word on how to regulate these areas.51 Internationally, Austin’s positivism had a less direct – but no less influential – impact. Austin himself denied that international law qualified as “law” because it was not the product of a single sovereign’s command.52 His views had profound effects on international lawyers of the period, all of whom felt compelled to refute his position.53 They did so by adopting a positivist frame of their own. In the second half of the nineteenth century, international law became increasingly a creature of state consent, a law regulating relations among “civilized” nations through the consent of those same nations.54 This positivist understanding, in turn, helps explain two developments in the Court’s treaty doctrine: (1) the increasing acceptance of the derivative nature of individual treaty rights and (2) the differing treatment of non-European versus European treaties. First, positivism’s increased emphasis on the primacy of sovereign states came at the expense of individual rights under international law. As Mark Janis has argued, naturalism conceived of international law as governing both states and individuals; in contrast, positivism came to formulate that law as one exclusively applicable to states.55 In the treaty context, this formulation meant that any rights (or remedies) for individuals came at the discretion of – and thus were subject to – the states creating the treaty. The Court’s rhetoric during this period often echoed this understanding, emphasizing treaties as agreements among states.56 And when it did so, the Court tended to find that

51 52 53 54

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Hopkins, 118 U.S. 356, 370 (1886) (“sovereignty itself remains with the people, by whom and for whom all government exists and acts”). See Jules Lobel, The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1112–14 (1985). Austin, supra note 47, at 152. Anghie, supra note 44, at 13–17 (discussing how international lawyers such as Westlake, Lawrence, Oppenheim, Walker, and Maine attempted to refute or qualify Austin). Vattel had recognized a category of customary law based on consent, but this category was less important than his “voluntary” law of nations based on natural law. See Vattel, supra note 45, at Preliminaries §§ xxi, xxv. Nineteenth-century treatise writers, however, tended to define international law in more positivist terms. See, e.g., Henry Wheaton, Elements of International Law 23, § 14 (Richard Henry Dana, Jr. ed., 8th ed. 1866) [hereinafter Wheaton] (defining international law as “those rules of conduct which reason deduces as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent”) (emphasis added); Thomas Lawrence, The Principles of International Law 12–13 (1895) (international law defined by usage of states rather than antecedent rights defined by reason); William Edward Hall, A Treatise on International Law 4 (1880) (“States . . . are independent beings, subject to no control and owning no superior . . . [A] state is only bound by rules to which it feels itself obliged . . . to submit.”); Kent’s Commentary on International Law 6 (Abdy ed., 1866) (defining “the sole source of international law” as “the consent of nations”); John Westlake, Chapters on the Principles of International Law 78–79 (1894). Indeed, the two posthumous editions of Wheaton – which were probably the international law sources most cited by the Court during this period – omitted rules of reason from the sources of international law. Compare Wheaton, supra, at 20 § 15 (omitting rules deduced by reason) and Henry Wheaton, Elements of International Law 22 § 12 (Lawrence ed., 6th ed. 1855) (same) with Henry Wheaton, Elements of International Law 47 § 16 (3d ed. 1846) (listing rules “deduced by reason”) and Henry Wheaton, Elements of International Law 48 § 14 (1836) (same). Janis, supra note 46, at 61–62; Bentham, supra note 46, at 293–96 (limiting the subjects of international law to states). Of course, even as it regulated relations among states, some positivists recognized that international law must do so for the ultimate benefit of individuals. See, e.g., Westlake, supra note 54, at 78. See, e.g., Head Money Cases, 112 U.S. 580, 598 (1884); Frelinghuysen v. Key, 110 U.S. 63, 72 (1884).

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states had not agreed to give individuals the treaty right asserted.57 Of course, positivism did not deny all individual treaty rights. Far from it: The Court continued to accept that states could use treaties both to contract relations inter se and to accord individuals rights warranting judicial protection.58 At the same time, the years from 1861 to 1900 witnessed the increasing use of an affirmatively positivist approach – claims commissions – to remedy individual claims for injuries suffered at the hands of foreign states.59 Unlike earlier commissions that awarded relief directly to injured individuals (e.g., the Jay Treaty60 ), these treaties converted individual claims into those of the espousing state. In other words, even if a claims commission made an award under a treaty to remedy an individual’s injury, that award belonged to the sovereign. And the sovereign (usually through Congress) dictated whether the individual concerned received remuneration and, if so, how much. In Frelinghuysen v. Key, for example, Chief Justice Morrison Waite opined that “while the claims of the individual citizens were to be considered by the commission in determining amounts, the whole purpose of the convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens.”61 According to the Court, Congress could even distribute such funds to individuals where an international claim had been disavowed; it did so for war premium insurance claims denied by the Alabama Claims Commission.62 Second, positivism may help explain differentiation in treatment of U.S. treaties with European and those with non-European powers.63 Although the Court did not emphasize the distinction in its cases, early forms of positivism clearly distinguished between

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See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 705 (1892); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1887); see also Chew Heong v. United States, 112 U.S. 536, 563 (1884) (Field, J., dissenting). Haver v. Yaker, 76 U.S. 32, 35 (1870) (treaty can be “something more than a contract”); see also Geofroy v. Riggs, 133 U.S. 258, 267 (1889); Wildenhus’s Case, 120 U.S. 1, 17 (1886); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876). See, e.g., Treaty between Great Britain and the United States for the Amicable Settlement of All Causes of Difference between the Two Countries, May 8, 1871, 143 Consol. T.S. 145 [hereinafter Treaty of Washington] (establishing a claims commission to hear individual claims attributable to Britain’s support for construction of Confederate warship Alabama); Convention of July 4, 1868, U.S.-Mex., 15 Stat. 679 [hereinafter 1868 Mexico Claims Convention] (establishing U.S.-Mexico Claims Commission); see also Convention of Jan. 15, 1880, U.S.-Fr., 21 Stat. 673; Convention of Aug. 7, 1892, U.S.-Chile, 27 Stat. 965; Convention of Dec. 4, 1868, U.S.-Peru, 16 Stat. 751. Although the United States appointed an agent to espouse individual claims, awards went to the individual claimants, not the United States. See, e.g., Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., art. VII, Nov. 19, 1794, 8 Stat. 116, 12 Bevans 13 [hereinafter Jay Treaty]; see also 1 John Bassett Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party 322, 344 (1898). 110 U.S. 63, 72 (1883); see also La Abra Silver Mining Co. v. United States, 175 U.S. 423, 458 (1899) (“[T]he money received from Mexico . . . was in strict law the property of the United States, and no claimant could assert or enforce any interest in it so long as the Government legally withheld it from distribution.”). The Court took the same position on the 1871 Treaty of Washington, see United States v. Weld, 127 U.S. 51, 56 (1888), and an 1871 U.S.-Spanish Claims Convention. See Angarica v. Bayard, 127 U.S. 251 (1888). Williams v. Heard, 140 U.S. 529, 538–39 (1890). The Court’s conclusion effectively treated the statute as overriding the Alabama Claims Commission’s decision, which the United States had agreed to treat as final and binding. So, although the Court never mentioned it, Williams might be seen as another example of the later-in-time rule. See infra Part II.B. See supra pp. 59–61.


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“civilized” and “uncivilized” states.64 That distinction, in turn, laid a foundation for differing standards of behavior: one for relations among civilized “sovereign” states (international law) and another for a civilized state’s relations with the uncivilized (matters subject to the sovereign’s own command).65 The civilized–uncivilized distinction thus gave self-proclaimed civilized states justifications for occupying land of the uncivilized and for affording them lesser rights.66 Such a distinction was likely at work in the Court’s views of Native American relations, most notably Chief Justice John Marshall’s labeling them “domestic dependent nations.”67 To the extent this positivist theory became even more prevalent in the second half of the century, it may also help explain the Court’s disparate treatment of European and non-European treaties, particularly where the Court dealt with treaties involving Native American nations, China, and Japan to the advantage of the U.S. government.68 Taken together, significant developments in U.S. domestic politics, international relations, and jurisprudence provide varying rationales for changes in the Court’s treatment of treaties. Congressional legislation on treaties forced the Court to consider separation of powers issues that had gone unaddressed in earlier eras. As U.S. treaty relations moved from ensuring the nation’s survival vis-à-vis great European powers to seeking land and other advantages over non-Europeans, perceptions of power and race may explain why so many more non-European treaties proved inapplicable or unenforceable than their European counterparts. Positivism’s predominance reinforced both developments, explaining Congress’s powers as a function of sovereignty and laying a foundation for disparate treatment of treaties depending on a nation’s “civilized” character. Positivism also emphasized the centrality of sovereign states – and the corresponding dependent position of individuals – in delineating treaty rights and remedies.

II. Continuity and Change in the Court’s Treaty Doctrine The foregoing analysis provides some explanations for why the Court’s 1861–1900 treaty doctrine would shift from its 1789–1860 behavior. It should not, however, be read to suggest that this doctrine had to change in all respects. In fact, it did not always change. Throughout the 1861–1900 period, the Court proved equally willing to invoke old rationales (e.g., restricting state violations of treaties to avoid cause for war; interpreting treaties in good faith to preserve U.S. compliance and honor) in certain contexts as the basis for its decisions. To make matters more complicated, the Court sometimes faced cases that put old and new principles in tension, forcing the Court to prioritize one in reaching a decision. Thus, although the Court never disavowed any of its earlier doctrine, 1861–1900 was a period in flux. The Court proclaimed its continued adherence to rulings 64

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Justice Field’s brother, David Dudley Field, authored a well-known International Code that made just this distinction. See, e.g., David Dudley Field, Outlines of an International Code 30 (1876) (emphasizing right to explore territory “not within the territorial limits of a civilized nation” and standards for interacting “[w]henever an uncivilized community has an established government”); see also Hall, supra note 54, at 1 (“International law consists in certain rules of conduct which modern civilized states regard as binding on them in their relations with one another.”) (emphasis added); Wheaton, supra note 54, at 10, 15; Westlake, supra note 54, at 81–82; Anghie, supra note 44, at 22–25. See Anghie, supra note 44, at 25. Id. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); see also Johnson v. M’Intosh, 21 U.S. 543, 589–90 (1823). See supra pp. 60–61.

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issued in the Republic’s early years, while at the same time it issued caveats, clarifications, and new rules that produced a different and more complex treaty doctrine at century’s end. This division between old and new – between consistency and change – varied depending on the context, with different outcomes for five lasting issues of U.S. treaty law: (1) the existence and enforcement of individual treaty rights, (2) the relationship between treaties and federal statutes, (3) the existence and status of non-self-executing treaties, (4) the proper method(s) of treaty interpretation, and (5) treaties’ relationships to state law.69

A. Private Rights and Judicial Remedies In 1884, Justice Samuel Miller, writing for the Court in the Head Money Cases, affirmed that treaties may operate as law for individual cases: A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may, in the end, be enforced by actual war. It is obvious that, with all this, the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. . . . A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.70

The Court did not specifically address whether the treaty in question afforded private rights.71 Nevertheless, its pronouncement reflects the Court’s overall approach to private efforts to enforce treaties during this period. From 1861 to 1900, it regularly applied treaties as law for individuals in a variety of contexts. It allowed individuals to invoke treaties as law directly, affording individuals rights and remedies in areas such as property, criminal due process, and immigration. 69

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A sixth issue – the scope of the treaty power – also began to occupy the Court’s attention during this period, although it would not fully emerge until the new century. See Chapter 6, pp. 199–202. In 1880, in Hauenstein v. Lynham, the Court in dicta cited John Calhoun for the idea that “all questions which may arise between us and other powers, be the subject matter what it may, fall within the treaty-making power.” 100 U.S. 483, 490 (1880). Geofroy v. Riggs described the treaty power as “unlimited” and touching “any matter which is properly the subject of negotiation with a foreign country,” but acknowledged that the power could not extend “so far as to authorize what the Constitution forbids, or a change in the character of [state] government . . . or a cession of any portion of the territory of the latter.” 133 U.S. 258, 266–67 (1889); see also In re Ross, 140 U.S. 453, 463 (1890) (“treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments”). For a full history of the treaty power question, see Hollis, supra note 13. 112 U.S. 580, 598–99 (1884) (emphasis added). The Court concluded that the duties required of immigrants under federal law did not violate any U.S. treaty commitments, but that even if they did, the later-in-time federal law governed. Id. at 597, 599.


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The Court did not apply every treaty this way. But contrary to later suggestions that Head Money established a presumption against private treaty rights,72 when the Court denied individual treaty claims, it did so by looking to the particular scope or nature of the treaty provision at issue. Thus, the Court’s doctrine during this period reflects much more continuity than change regarding private treaty rights.73 If anything, what the Court did with treaties from 1861 to 1900 suggests a presumption in favor of treaties as federal law vis-à-vis individuals unless something in the treaty or a federal statute suggested otherwise. Even when Congress weighed in on a treaty’s provisions – which it did quite frequently – the Court began with a presumption of conformity among statutes and treaties.74 On numerous occasions, the Court found Congress had, by statute, preserved or even facilitated U.S. compliance with treaty provisions that related to individual claims or defenses. At the same time, the Court did begin to concede that Congress could limit or even deny treaty rights via statute. It did so, however, precisely because it viewed treaties, like other federal laws, as subject to later statutory revisions or repeals.75 What sort of treaty rights and remedies did the Court actually recognize? Most of the cases involved property rights. Some included promises of nondiscrimination with respect to property held in the United States, which the Court allowed individuals to invoke over contrary state law.76 For example, in Burthe v. Denis, the Court enforced payments for damages to a French national’s property suffered during the Civil War in accordance with a French treaty in lieu of the distribution called for under Louisiana law.77 With U.S. relocation of Native Americans, the Court also recognized that a treaty by itself could transfer property rights, from Native Americans to the U.S. government (or vice versa), including to Native American individuals.78 In a variety of cases, the Court enforced such property rights directly.79 In Best v. Polk, for example, the Court found a defendant had good title after purchasing land from a Native American whose title rested on a U.S. treaty with the Chickasaw Nation.80 The Court thus overruled the plaintiff ’s action for ejectment based on a U.S. patent issued after the treaty had 72

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E.g., Brief for the United States as Amicus Curiae Supporting Respondents at 11, Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) (Nos. 05–51 and 04–10566) (quoting Head Money Cases); Brief for Respondents at 30, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05–184) (same); see David Sloss, When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas, 45 Colum. J. Transnat’l L. 20, 92 (2006). But see Medellin v. Texas, 552 U.S. 491, 506 n.3 (2008) (recognizing a presumption against private treaty rights by citing recent appellate decisions, but not the Head Money Cases specifically). See Chapter 1, pp. 14–16 (discussing individual rights and treaties in prior period). See, e.g., Whitney v. Robertson, 124 U.S. 190, 194 (1887) (When treaties and statutes “relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either.”) (emphasis added); Chew Heong v. United States, 112 U.S. 536, 549 (1884) (like statutes, repeals of treaties by implication are not favored); see also infra pp. 74–75. See, e.g., Whitney, 124 U.S. at 194 (“If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.”); Chew Heong, 112 U.S. at 562–63 (Field, J., dissenting). See infra pp. 85–86 (discussing Hauenstein v. Lynham, 100 U.S. 483 (1880), and Geofroy v. Riggs, 133 U.S. 258 (1889)). 133 U.S. 514, 521 (1890). See Holden v. Joy, 84 U.S. 211, 247 (1872) (“[T]here are many authorities where it is held that a treaty may convey to a grantee a good title to such lands without an act of Congress conferring it.”). See, e.g., Jones v. Meehan, 175 U.S. 1, 21 (1899); The Kansas Indians, 72 U.S. 737, 757 (1866). Congress often legislated in support of these title transfers as well. See infra pp. 71–72. 85 U.S. 112, 116 (1873).

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already conveyed the property.81 Most often, individuals continued to make the sorts of property claims that had long occupied the Court’s attention: asking the Court to enforce U.S. promises to respect preexisting titles in territory acquired by the United States via a treaty of cession.82 And the Court obliged. It repeatedly held that U.S. treaties of cession guaranteed a preexisting “perfect” title, even where the U.S. government claimed that same property for itself.83 In addition to property claims, the Court recognized private treaty rights in the context of criminal proceedings. In United States v. Rauscher, the Court found that an 1842 extradition treaty with Great Britain provided extradited defendants with the right to face only those charges for which extradition had been granted (i.e., the so-called rule of specialty).84 Moreover, the Court indicated that defendants could invoke this right via habeas corpus, allowing both federal and state courts to redress any violation of the rule.85 The Court’s conclusion rested on the treaty’s structure and the weight of other authorities, because the treaty itself did not explicitly provide for a rule of specialty, let alone require its judicial enforcement.86 When the two sides concluded a new extradition treaty in 1889 that did expressly include a rule of specialty, the Court continued to recognize the defendant’s right to habeas corpus to ensure its protections as well.87 The Chinese Exclusion Act prompted another occasion for the Court to recognize habeas corpus as a vehicle for enforcing individual rights guaranteed via treaty. Chinese immigrants had originally been welcomed as laborers to the Pacific Coast region.88 In 1868, the United States and China concluded the Burlingame Treaty, which, among other things, recognized the “mutual advantage of free migration and emigration of their citizens and subjects.”89 Between 1873 and 1882, a wave of Chinese immigrants arrived in California; by 1880, they totaled 9 percent of the population.90 Racial prejudices and economic competition with Chinese immigrants spawned widespread and severe discrimination by private citizens and state and local governments alike, with accompanying calls for Congress to abrogate the treaty.91 In 1880, the two sides concluded a 81 82

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Id. The Court reasoned that even though issued by the U.S. government, a patent is void if it attempts to convey lands previously conveyed. Id. See Chapter 1, pp. 19–20 (discussing earlier cases); see also Ely’s Adm’r v. United States, 171 U.S. 220, 223 (1898) (“[I]n harmony . . . with the terms of the treaties of cession, the change of sovereignty should work no change in respect to rights and titles.”); Ainsa v. United States, 161 U.S. 208, 220 (1895); Hornsby v. United States, 77 U.S. 224, 234–35 (1870); United States v. Auguisola, 68 U.S. 352, 358 (1863). United States v. Chaves, 159 U.S. 452, 458 (1895) (treaty guarantees protection of preexisting property of claimants); Knight v. U.S. Land Ass’n, 142 U.S. 161, 183–84 (1891) (same); see also United States v. Auguisola, 68 U.S. 352, 358 (1863) (protecting preexisting property rights under treaty of Guadalupe Hidalgo over competing U.S. claim); United States v. Moreno, 68 U.S. 400, 404 (1864) (same); United States v. Yorba, 68 U.S. 412, 423 (1864) (same). 119 U.S. 407, 420 (1886). The defendant Rauscher had been extradited to face murder charges, but sought relief under the treaty when the prosecutor charged him with cruel and unusual punishment (which was not an extraditable offense under the 1842 treaty). Id. at 409–10. Id. at 431. Id. at 420–30. Cosgrove v. Winney, 174 U.S. 64, 69 (1899). Bailey, supra note 24, at 393. Additional Articles to the Treaty between the United States and China, U.S.-China, art. V, July 28, 1868, 16 Stat. 739 (known as the “Burlingame Treaty” for the former U.S. diplomat who negotiated it on China’s behalf). Bailey, supra note 24, at 393; LaFeber, supra note 31, at 51–52. Id.; see The Chinese Problem. Some Novel Views Presented by Our Washington Correspondent, San Francisco Bulletin, July 2, 1878 (lengthy and substantive exploration of arguments for and against the later-in-time rule, concluding that Congress has constitutional authority to override the Burlingame


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new treaty, under which the United States could “regulate, limit or suspend [Chinese immigration], but may not absolutely prohibit it.”92 Chinese subjects, including Chinese laborers, were “allowed to go and come of their own free will and accord,” getting “all the rights, privileges, and immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.”93 Purporting to implement this new treaty, Congress passed the Chinese Exclusion Act in 1882.94 It suspended new Chinese immigration for ten years and instituted a scheme requiring Chinese laborers leaving the United States to obtain certificates entitling them to reentry on their return.95 Chew Heong, a Chinese laborer, left the United States in June 1881 (after the 1880 immigration treaty entered into force), and was denied reentry in 1884 because he lacked the certificate required by the 1882 Chinese Exclusion Act, as amended.96 He invoked habeas corpus, contending that the 1880 treaty gave him a right of reentry regardless of the later enacted statutes.97 The Court agreed, finding that the statutory certification requirements did not apply to those who left before Congress enacted its certification scheme, so that such Chinese laborers still held the right of free movement per the 1880 treaty.98 The Court acknowledged that Congress could override the treaty, but where it had not done so expressly, it found that treaty rights remained.99 In the ensuing decade, the Court found other Chinese subjects could not be denied reentry to the United States given their rights under the Burlingame and 1880 immigration treaties.100

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Treaty). The Chinese were despised not only because of racial and cultural differences but also because they would work more for substantially less pay. In 1879, California ratified a new constitution, denying Chinese residents the right to vote in state elections and banning all employment of Chinese workers. Cal. Const. art. XIX (repealed 1952). Federal courts struck down many of these provisions on the basis of nondiscrimination provisions in the Burlingame Treaty. See, e.g., In re Tiburcio Parrott, 1 F. 481, 499 (C.C.D. Cal. 1880). At the Supreme Court, however, most of these laws fell before constitutional objections rather than treaty supremacy. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (Fourteenth Amendment prohibits local ordinance discriminating against Chinese-operated laundries); Chy Lung v. Freeman, 92 U.S. 275, 277 (1876) (striking state restrictions on immigration of “lewd” women under the dormant Commerce Clause). Tim Wu surveys this history in his article Treaties’ Domain. Wu, supra note 6, at 615–22. Treaty Concerning Immigration, U.S.-China, Nov. 17, 1880, 22 Stat. 826 [hereinafter 1880 Treaty] (ratification exchanged July 19, 1881, proclaimed Oct. 5, 1881). Id. art. 2; see also id. art. 3 (“If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other person, the Government of the United States will exert all its power to devise measures for their protection and to secure to them” the same rights as the most favored nation’s citizens). See An Act to Execute Certain Treaty Stipulations Relating to the Chinese, 22 Stat. 58 (1882). Id. See Chew Heong v. United States, 112 U.S. 536, 537 (1884). In 1884, Congress amended the Chinese Exclusion Act to make clear that a certificate was the “only evidence permissible to establish a right of re-entry.” Act of July 5, 1884, 23 Stat. 115. Chew Heong, 112 U.S. at 539. The Philadelphia Inquirer referred to Chew Heong’s actions as a “test case” for the Chinese Exclusion Act. See Proceedings in the United States Supreme Court, Philadelphia Inquirer, Dec. 9, 1884. Chew Heong, 112 U.S. at 560. Justices Field and Bradley dissented (separately), arguing that the later enacted statutes did cover Heong’s situation, thus barring his reentry to the United States. See id. at 574–75 (Field, J., dissenting); id. at 580 (Bradley, J., dissenting). Id. at 549. See United States v. Gue Lim, 176 U.S. 459, 464 (1900) (neither Chinese Exclusion Act nor 1894 treaty with China removed right of wife and minor children of Chinese merchants to reenter the United States pursuant to the 1880 immigration treaty); Lau Ow Bew v. United States, 144 U.S. 47, 63 (1892) (Chinese merchant need not provide a certificate to reenter given his right to do so under Burlingame Treaty and 1880 immigration treaty); United States v. Jung Ah Lung, 124 U.S. 621, 635 (1888) (providing for reentry

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Even as the Court recognized that individuals had enforceable rights under treaties relating to property, due process, and immigration, it frequently rejected other individuals’ attempts to invoke treaty protections. Generally, the Court did so based on one of four reasons – (1) the scope of the treaty provision in question, (2) procedural default, (3) the nature of the treaty itself, or (4) congressional acts that limited (or abrogated) the availability of any treaty rights. As often as the Court accorded individuals relief pursuant to treaties, it rejected an equal number of other claims and defenses based on treaties. Usually, the Court’s refusal assumed that a treaty could provide the right claimed, but found the treaty in question did not do so.101 Thus, the Court rejected importers’ claims that treaties guaranteed their products customs duties equivalent to that of the most favored nation because it found either the products did not qualify for the duty or the treaty did not apply.102 In other cases, it was the plaintiffs themselves who failed to fall within the class to which the treaty accorded rights.103 Thus, even as the Court denied treaty rights in these cases, its approach affirmed that treaties could create rights that the Court would remedy. In at least one case, however, the Court adopted a different approach from earlier doctrine. In Spies v. Illinois, the Court foreshadowed the procedural default rule’s later application to treaty claims.104 When British and German defendants facing execution in Illinois suggested that such a fate would deny them rights guaranteed by U.S. treaties with their respective countries, the Court disposed of their claim by noting, “[I]t is sufficient to say that no such questions were made and decided in either of the courts below, and they cannot be raised in this court for the first time.”105 The Court did not consider the claim closely, however, noting that no actual treaties had been presented to the Court

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where Chinese laborer who left with a certificate of reentry lost it before Congress amended the Chinese Exclusion Act to require the certificate as the only proof of reentry). See, e.g., Ainsa v. United States, 161 U.S. 208, 223 (1896) (treaty of cession protected most preexisting property rights, but not property rights that had yet to be located); Ward v. Race Horse, 163 U.S. 504, 508 (1896) (hunting rights provided by treaty did not extend to land in question); Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 653 (1890) (treaty rights granted to Native Americans did not include a right of eminent domain); Wildenhus’s Case, 120 U.S. 1, 18 (1887) (habeas corpus available to Belgian Consul to protect consular rights provided in treaty, but those rights do not include jurisdiction over crimes involving public “disorder”); Ker v. Illinois, 119 U.S. 436, 443 (1886) (rights under extradition treaty do not include general right of asylum); Dent v. Emmeger, 81 U.S. 308, 312 (1872) (treaty of cession protected preexisting perfect titles, but not inchoate rights); Wilson v. Wall, 73 U.S. 83, 88–89 (1867) (treaty conveying property to Native American for himself and his children gave rights only to father, not children). See, e.g., Bartram v. Robertson, 122 U.S. 116, 120 (1887) (most-favored-nation clause in treaty with Denmark did not extend to “special concessions” agreed to in treaty between the United States and Hawaii); United States v. Hathaway, 71 U.S. 404, 407–08 (1867) (treaty provision did not preclude customs duty on article in question); see also United States v. Quimby, 71 U.S. 408, 409 (1867); Whitney v. Robertson, 124 U.S. 190, 192–93 (1887). Westmoreland v. United States, 155 U.S. 545, 548 (1895) (right to trials within Native American Nation provided for by treaty did not apply to defendant in question); The Cherokee Trust Funds, 117 U.S. 288, 311–12 (1886) (U.S. treaty obligations to make certain payments under treaties with Cherokee Nation did not extend to those who previously had belonged to that Nation but had dissolved their connection to it); Haver v. Yaker, 76 U.S. 32, 34 (1870). 123 U.S. 131, 182 (1887); see also Sanchez-Llamas v. Oregon, 548 U.S. 331, 353 (2006); Breard v. Greene, 523 U.S. 371, 375–76 (1998). Spies, 123 U.S. at 182 (emphasis added). In earlier periods, the Court had applied procedural default rules to bar claims where plaintiffs failed to pursue congressionally prescribed federal administrative remedies. See Sloss, supra note 72, at 75–76. However, Spies appears to be the first case where the Court indicated that it would give effect to state procedural default rules to bar treaty claims.


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for analysis.106 Still, the opinion suggests that treaties were susceptible to the same sorts of procedural rules applicable in constitutional and statutory contexts.107 Moreover, in some cases the Court found that, by their nature, certain treaty provisions limited the rights that individuals could invoke before the Court. For example, the Court determined that the nature of extradition proceedings limited the scope of judicial review of those proceedings through habeas corpus. In 1888, in Benson v. McMahon, the Court emphasized that because extradition proceedings differ from criminal proceedings, the Court would not afford individuals the same sort of review that accompanies a traditional writ of error.108 On the contrary, the Court suggested that so long as there was “any legal evidence” that a commissioner had complied with an extradition treaty’s provisions, the Court would affirm the commissioner’s findings.109 Thus, the nature of extradition proceedings limited the scope of habeas corpus review. Similarly, as noted, the Court repeatedly held that claims settlement treaties did not give rise to private rights (or duties); they only involved rights and obligations for states parties.110 Therefore, the nature of these treaties precluded individual complaints about a commission’s procedures or decisions – let alone demands for payment – even if a commission had made its award based on injuries to the individual in question.111 In fact, the Court generally regarded the Executive as having a prerogative over decisions on whether (and how) to negotiate, conclude, and implement these treaties, with which the courts could not interfere.112 If Congress afforded individuals rights relating to these awards, the Court would enforce them. It did so, however, with the view that the rights came via Congress, not the treaty itself.113 The role Congress played with respect to treaty rights took on increasing importance from 1861 to 1900. In many of the cases, the claims came under both a treaty and a subsequent act of Congress that sought to implement the treaty obligation. Thus, land claims that the United States had promised to recognize and enforce under the 1848 Treaty of Guadalupe Hidalgo proceeded under an 1851 act of Congress establishing a commission to examine evidence of such claims and to pronounce on those who qualified for protection under the treaty.114 That act specifically gave the Supreme 106 107

108 109 110 111

112 113

114

Spies, 123 U.S. at 182. One might also consider Taylor v. Morton as a similar case, where the Court found federal jurisdiction did not permit review of a statute’s conflict with an earlier treaty because the issue was not raised at trial. See 67 U.S. 481, 484–85 (1863). 127 U.S. 457, 463 (1888). See, e.g., Bryant v. United States, 167 U.S. 104, 105 (1897); Ornelas v. Ruiz, 161 U.S. 502, 508 (1896); In re Luis Oteiza y Cortes, 136 U.S. 330, 334 (1890). See supra p. 64. See, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 458 (1899) (1868 Mexican Claims Convention); Williams v. Heard, 140 U.S. 529, 538 (1891) (1871 Treaty of Washington); Angarica v. Bayard, 127 U.S. 251, 259 (1888) (Spanish Claims Convention); Alling v. United States, 114 U.S. 562, 564 (1885) (1868 Mexican Claims Convention); Great Western Ins. Co. v. United States, 112 U.S. 193, 200 (1884) (1871 Treaty of Washington); Frelinghuysen v. Key, 110 U.S. 63, 72–73 (1884) (1868 Mexican Claims Convention). Frelinghuysen, 110 U.S. at 75; see also Great Western, 112 U.S. at 193; Angarica, 127 U.S. at 261. See, e.g., United States v. Weld, 127 U.S. 51, 57 (1888) (claim for payment from Alabama Claims Commission Award allowed before U.S. Court of Claims based on an act of Congress, not the Treaty of Washington, the Court having no jurisdiction over claims arising from treaty); see also Burthe v. Denis, 133 U.S. 514, 522 (1890). See Treaty of Peace, Friendship, Limits, and Settlement, U.S.-Mex., art. VIII, Feb. 2, 1848, 9 Stat. 922 (1848); Act of March 3, 1851, 9 Stat. 631.

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Court jurisdiction to review the commission’s findings, which it did regularly, holding that perfected titles owned by individuals before cession took priority over competing U.S. government claims to the land.115 The Court thus enforced property rights afforded by the 1848 treaty, but did so through the lens of the 1851 statute. Native American treaties often came before the Court in a similar way, with the Court recognizing the underlying treaty right to property, supported by a congressional act that either confirmed the obligation in question or gave the Court jurisdiction to do so.116 The Court’s decisions to uphold property rights by treaty and statutes should not be confused with the cases in which the Court relied solely on a statute (or its absence) to dictate the outcome of individual claims and defenses to property rights. Just as it did in earlier years, the Court recognized that treaties of cession did not require U.S. recognition of inchoate (i.e., imperfect) property rights that existed before cession.117 For the Court to enforce inchoate claims, Congress still needed to act. And it was Congress’s legislation – not the treaty – that afforded any private rights to title.118 In either case, the Court recognized that Congress had a significant say on the existence and enforcement of individual rights under a treaty. Where a property claim was pending before Congress, the Court declined to intervene.119 Congress could also stipulate what process to follow to identify rights protected by a treaty of cession.120 If Congress did so, a failure to follow those procedures would deny a right that might otherwise warrant protection under the treaty.121 And, of course, if the Court read Congress to legislate in conflict with rights provided under an earlier treaty, Congress’s statute controlled in accordance with the later-in-time rule.122 All told, the Court’s cases from 1861 to 1900 demonstrate a commitment to recognizing and enforcing treaty rights through judicial remedies. That said, the Court’s cases also recognized that a treaty provision’s scope or the nature of the treaty itself might derail individual claims of a treaty right. Moreover, Congress could play a critical role, legislating to assist in identifying and enforcing treaty rights in some cases, while limiting or even abrogating those rights in other instances. 115

116

117

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119 120 121 122

See, e.g., United States v. Chaves, 159 U.S. 452, 458 (1895); Moore v. Steinbach, 127 U.S. 70, 79 (1888); Van Reynegan v. Bolton, 95 U.S. 33, 35 (1877); United States v. Joseph, 94 U.S. 614, 618 (1877); Townsend v. Greeley, 72 U.S. 326, 334–35 (1867); United States v. Auguisola, 68 U.S. 352, 358 (1863); United States v. Moreno, 68 U.S. 400, 404 (1864); United States v. Yorba, 68 U.S. 412, 423 (1864). United States v. Navarre, 173 U.S. 77, 79 (1899); New York Indians v. United States, 170 U.S. 1, 22–24 (1898); United States v. Old Settlers, 148 U.S. 427, 478 (1893); Pam-to-Pee v. United States, 148 U.S. 691, 699 (1893); Choctaw Nation v. United States, 119 U.S. 1, 44 (1886); Holden v. Joy, 84 U.S. 211, 247 (1872). E.g., Hays v. United States, 175 U.S. 248, 261–62 (1899); Cessna v. United States, 169 U.S. 165, 186 (1898); United States v. Santa Fe, 165 U.S. 675, 714 (1897); United States v. Sandoval, 167 U.S. 278, 293 (1897); Bergere v. United States, 168 U.S. 66, 85 (1897); Ainsa v. United States, 161 U.S. 208, 223 (1896); Pinkerton v. Ledoux, 129 U.S. 346, 349 (1889); Dent v. Emmeger, 81 U.S. 308, 312–13 (1872); Hornsby v. United States, 77 U.S. 224, 236 (1870). E.g., Dent, 81 U.S. at 312–13 (“But inchoate rights . . . were of imperfect obligation and affected only the conscience of the new sovereign. They were not of such a nature (until the sovereign gave them a vitality and efficacy which they did not before possess) that a court of law or equity could recognize or enforce them. When confirmed by Congress they became American titles and took their legal validity wholly from the act of confirmation and not from any French or Spanish element which entered into their previous existence.”). Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80, 83 (1893). E.g., Ely’s Adm’r v. United States, 171 U.S. 220, 223 (1898); Ex parte Atocha, 84 U.S. 439, 444 (1873). Slidell v. Grandjean, 111 U.S. 412, 438–40 (1883). See infra Part II.B.


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B. Treaties and Congress Undoubtedly the most important development in the Court’s treaty doctrine from 1861 to 1900 involved its adoption of a principle equating treaties and statutes, which in turn formed the basis for the later-in-time rule. The early history had left the treaty–statute relationship unresolved. The Framers had differing views on what to do when treaties and statutes collided.123 None of the three branches had done anything in the Republic’s early years to adopt a single position. On the contrary, executive officials and Supreme Court Justices offered conflicting opinions on the need to equate treaties and federal statutes versus giving treaties priority over all statutes.124 It was not until 1870, in The Cherokee Tobacco, that the Court finally undertook to resolve the question.125 That case involved a promise of tax immunity for tobacco sold within the Cherokee Nation under an 1866 treaty that the U.S. Government argued was annulled by an 1868 federal statute taxing such tobacco.126 An understaffed Court, by a 4–2 decision, found a clear repugnancy between the treaty and the statute that the Constitution’s text did not resolve.127 The Court reasoned, however, that “[a] treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.”128 The Court directed any complaints about the U.S. breach of its treaty obligations to Congress, presuming that Congress would give “the proper relief.”129 The Court would affirm the equivalence between treaties and statutes more than a dozen times before the century ended.130 The same day that the Court found Chew 123

124 125 126 127

128

129 130

Compare The Federalist, No. 64, at 379 (John Jay) (Isaac Kramnick ed., 1987) (viewing treaties as “beyond the lawful reach of legislative acts”) and Camillus No. XXXVII, reprinted in 20 The Papers of Alexander Hamilton 21 (1961) (suggesting that treaty stipulations “are, in good faith, restraints upon the exercise” of the power of legislation) with 3 Elliot’s Debates on the Adoption of the Federal Constitution 515 (1968) (Madison endorsing proposition that “restrained the supremacy of [treaties] to the laws of the particular states, and not to Congress, is rational”); see also Julian Ku, Treaties as Law: A Defense of the Last-in-Time Rule for Federal Statutes, 80 Ind. L.J. 319 (2005) (suggesting early history supports a later-in-time rule); Vasan Kesavan, The Three Tiers of Federal Law, 100 Nw. U. L. Rev. 1479 (2006) (suggesting early history supports always giving statutes priority over treaties). See Chapter 1, pp. 18–19. 78 U.S. 616 (1870). Id. at 618. Id. at 620 (Chief Justice Chase and Justices Nelson and Field did not hear the argument). The Court declined to read an exception into the tax statute’s coverage, absent an explicit exclusion by Congress. Id. Justices Bradley and Davis dissented, arguing that the Court should read the treaty and the statute harmoniously by finding that the statute’s silence on its territorial reach meant it did not extend to Native American territory. Id. at 622–23. Id. at 621 (citing Foster v. Neilson, Taylor v. Morton, and The Clinton Bridge); see also Foster v. Neilson, 27 U.S. 253, 314 (1829); The Clinton Bridge, 5 F. Cas. 1060 (C.C.D. Iowa, 1867) (concluding judiciary lacked power to void a statute for violating U.S. treaty obligations); Taylor v. Morton, 23 F. Cas. 784 (C.C.D. Mass. 1855) (finding act of Congress superseded 1832 Commercial Treaty with Russia), aff’d on other grounds, 67 U.S. 481 (1862). Although these precedents involved foreign treaties, the Court found them equally applicable to a treaty with Native Americans. See The Cherokee Tobacco, 78 U.S. at 621. The Cherokee Tobacco, 78 U.S. at 621. The Court also found it was not unreasonable to impose some tax burden on Native Americans. Id. See, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899); Stephens v. Cherokee Nation, 174 U.S. 445, 483–84 (1899); Wagnor v. Evans, 170 U.S. 588, 590 (1898); Thomas v. Gay, 169 U.S. 264, 271 (1898); Draper v. United States, 164 U.S. 240, 243 (1896); Ward v. Race Horse, 163 U.S. 504, 511 (1895); Fong Yue Ting v. United States, 149 U.S. 698, 720–21 (1893); Horner v. United States, 143 U.S. 570, 578 (1892); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Botiller v. Dominguez, 130 U.S. 238, 247 (1888); Kelly v. Hedden, 124 U.S. 196, 196 (1887); Whitney v. Robertson, 124 U.S. 190, 194–95 (1888); Head Money Cases, 112 U.S. 580, 597–98 (1884); United States v. McBratney, 104 U.S. 621, 622 (1882).

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Heong’s right of reentry unaffected by the Chinese Exclusion Act,131 the Head Money Cases opinion affirmed The Cherokee Tobacco and the notion that even treaties subject to judicial cognizance were “subject to such acts as Congress may pass for its enforcement, modification, or repeal.”132 The Court also hinted that, if equivalency were not the rule, statutes might take priority over treaties.133 Four years later, in Whitney v. Robertson, the Court reaffirmed its equivalency thesis and, for the first time, articulated the later-in-time rule: By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other.134

In addition to invoking equivalency, the Whitney Court also reintroduced an idea first put forth by Justice Benjamin Curtis in an earlier appellate decision – Taylor v. Morton – namely that asking whether and why Congress departed from a treaty were political, rather than judicial, questions that the Court could not address.135 Whitney was the first of the equivalency cases to mandate that the Court first must try to harmonize statutes and treaties a` la the Charming Betsy canon before resorting to the later-in-time rule.136 But the Court had already adopted this approach in practice. The Court often articulated a presumption against implicit or unnecessary repeals of statutes.137 As a result, it regularly identified later-in-time statutes that posed no conflict to an earlier treaty and the rights it provided.138 Chew Heong is a particularly noteworthy example of the Court’s efforts to read a treaty and a later statute consistently.139 However, public opinion did not always look kindly on this practice.140 By 1888, neither did Congress – it enacted new immigration controls 131 132

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134 135 136 137

138

139 140

Chew Heong v. United States, 112 U.S. 536, 560 (1884); supra p. 69. Head Money Cases, 112 U.S. at 597, 599. The Court also noted that United States v. McBratney had followed The Cherokee Tobacco. See id. at 597 (discussing McBratney and other judicial precedents for treaty equivalency). Id. at 599 (“The Constitution gives [treaties] no superiority over an Act of Congress. . . . Nor is there anything, in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity. . . . If there be any difference [between statutes and treaties] it would seem to be in favor of an Act in which all three of the bodies participate.”). 124 U.S. 190, 194 (1888). Id.; see also Taylor v. Morton, 23 F. Cas. 784 (C.C.D. Mass. 1855). Whitney, 124 U.S. at 194; Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). See, e.g., Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733, 741–42 (1876) (presuming Congress does not intend to legislatively override grants provided via treaty); Ward v. Race Horse, 163 U.S. 508, 511 (1896) (same). Indeed, even where the Court found a conflict, it often tried to read the statute to modify preexisting treaty rights, rather than to abrogate them entirely. See, e.g., La Abra Silver Mining Co. v. United States, 175 U.S. 423, 463 (1899); Ely’s Adm’r v. United States, 171 U.S. 220, 223–24 (1898); Smith v. United States, 151 U.S. 50, 53 (1894). For example, in United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 497–98 (1883), the Court declined to read a later-in-time tax law as superseding an earlier treaty promise to prohibit liquor sales within identified territory. See also United States v. Gue Lim, 176 U.S. 459, 464 (1900); New York Indians v. United States, 170 U.S. 1, 22–23 (1898); Lau Ow Bew v. United States, 144 U.S. 47, 62 (1892); Powers v. Comly, 101 U.S. 789, 790–91 (1879). Chew Heong v. United States, 112 U.S. 530, 560 (1888); see supra p. 69. See, e.g., Constitutional Expounders, San Francisco Bulletin, Aug. 27, 1883 (warning of danger to “our rights” if Congress’s statutes – which can modify treaties – are always read consistent with such treaties).


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that denied entry even to those Chinese immigrants who had obtained reentry certificates before their departure.141 In the Chinese Exclusion Case – the best known of the Court’s later-in-time cases – the Court conceded that Congress was clear in abrogating the Chinese treaties, finding that there was “no question” of Congress’s ability to supersede treaty rights by statute.142 In doing so, the Court again emphasized the presumption against abrogation alongside the political nature of questions on why Congress might choose to modify or repeal a treaty.143 Ultimately, the Court emphasized that “the last expression of the sovereign will must control.”144 Thus, the Chinese Exclusion Case rested the later-in-time rule not only on the equivalency of federal statutes and treaties but also on the inherent sovereignty of the United States.145 What about the role of later-in-time treaties? Although both the Court’s opinions and those of the Executive acknowledged the possibility that treaties could trump earlier conflicting statutes, none of the 1861–1900 cases did so.146 On at least one occasion, however, the Court read a later treaty consistent with an earlier statute.147 Finally, even as the Court crafted the later-in-time rule, it maintained an important exception – Congress could not legislate to override “vested” or “perfected” treaty rights. As Jones v. Meehan put it, “except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself.”148 In that case, the Court disavowed a congressional act trying to convey land that the Court found had already been ceded to Native Americans via an earlier treaty.149 Similarly, in Reichart v. Felps, the Court reasoned that “Congress is bound to regard the public treaties, and it had no power to organize a board of revision to nullify titles confirmed many years before by the authorized agents of the government.”150 How widely did this idea of vested or perfected rights extend? Often, the Court’s rhetoric suggested a large barrier against congressional interference. The Supreme Court contended in Wilson v. Wall that “Congress has no constitutional power to settle the rights under treaties except in cases purely political. The construction of them is the peculiar province of the judiciary, when a case shall arise between individuals.”151 That said, these pronouncements always accompanied judicial protection of property rights under a treaty of cession. The Court tended to characterize these property rights as an 141 142 143 144 145

146

147 148

149 150 151

Act of October 1, 1888, c. 1064, 25 Stat. 504. 130 U.S. 581, 600–01 (1888). Id. at 600–02. Id. at 600. Id. at 609. Four years later, Congress went a step further and authorized deportation of Chinese immigrants who could not produce residency certificates required by the same law. Again, the Court found this later act controlled over earlier treaties. Fong Yue Ting v. United States, 149 U.S. 698, 720 (1892). The New York Times described this case as resting on “the inherent sovereignty of the nation, and its absolute power, as a part of this sovereignty, through the political (unhampered by the judicial) department.” Workings of Judicial Minds in the Chinese Cases, N.Y. Times, May 22, 1893. See, e.g., The Cherokee Tobacco, 78 U.S. 616, 621 (1870); 21 Op. Att’y Gen. 347, 348 (1896) (treaty can modify requirement of statute); 13 Op. Att’y Gen. 354, 360 (1870) (treaty can override statutory ban on bond issuance to Native Americans). See Ex parte Kan-gi-shu-ca, 190 U.S. 556 (1883). 175 U.S. 1, 32 (1899); see also The Chinese Exclusion Case, 130 U.S. 581, 601–02 (1888) (“whatever of a permanent character had been executed or vested under the treaties was not affected by [the statute]. In that respect the abrogation . . . of a treaty operates, like the repeal of a law, only upon the future, leaving transactions executed under it to stand unaffected.”); Holden v. Joy, 84 U.S. 211, 247 (1872). Jones, 175 U.S. at 32. 73 U.S. 160, 165–66 (1868). 73 U.S. 83, 89 (1867); see also Holden, 84 U.S. at 247 (citing Wilson).

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example of the protected class.152 But, it might have been the only example – efforts to invoke other rights as “vested” or “perfected” failed on the grounds that they differed qualitatively from property rights.153 As the Court suggested in the Chinese Exclusion Case, “[b]etween property rights not affected by the termination or abrogation of a treaty, and expectations of benefits from the continuance of existing legislation, there is as wide a difference as between realization and hopes.”154 Thus, other rights remained “subject to such acts as Congress may pass for its enforcement, modification, or repeal.”155 In sum, between 1861 and 1900, the Court resolved the longstanding question of the treaty–statute relationship through a theory of equivalency. The Court still sought to reconcile treaties and statutes, particularly by consistent readings whenever possible. But, beginning with The Cherokee Tobacco, the Court adopted the later-in-time rule, which most of the time resulted in later statutes trumping earlier treaties. And although an exception existed under this rule for vested and perfected rights, rights relating to property appear to be the only area where the Court actually applied it.

C. Executing Treaties In 1829, in Foster v. Neilson, Chief Justice Marshall had distinguished a treaty’s general operation as “a contract between two nations” from the treatment accorded it by the Supremacy Clause, where it is “to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”156 This rule, however, came with a caveat: a treaty would “import a contract, when either of the parties engages to perform a particular act,” leaving the treaty to speak to the legislature, which “must execute the contract before it can become a rule for the Court.”157 From 1861 to 1900, the Court referenced Foster more than a dozen times, most often for its pronouncement that treaties operate as “equivalent to an act of the legislature.”158 Somewhat surprisingly, however, the Court’s decisions did relatively little to explore Foster’s caveat for treaties that the Court could not enforce. In 1887, in Bartram v. Robertson, Justice Field deployed the term “self-executing” to refer to treaties for the first time, but gave the category itself little elaboration.159 The most extensive discussion of the issue came not in a majority opinion, but in a dissent by Justice Field earlier that year.160 152 153 154 155 156 157 158

159

160

Head Money Cases, 112 U.S. 580, 598 (1884). See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 722 (1893). The Chinese Exclusion Case, 130 U.S. at 610. Head Money Cases, 112 U.S. at 599. 27 U.S. 253, 314 (1829). Id.; Chapter 1, pp. 20–23. E.g., Thomas v. Gay, 169 U.S. 264, 271 (1898); Fong Yue Ting v. United States, 149 U.S. 698, 720–21 (1893); United States v. Rauscher, 119 U.S. 407, 418 (1886); Chew Heong v. United States, 112 U.S. 536, 540 (1884); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196 (1876); The Cherokee Tobacco, 78 U.S. 616, 621 (1871). Other times, the Court cited Foster for its specific holding on land titles. See Brown v. Walker, 161 U.S. 591, 607 (1896); Coffee v. Groover, 123 U.S. 1, 26 (1887); Bryan v. Kennet, 113 U.S. 179, 191 (1885). The Court also referenced Foster to establish treaty supremacy over state law. Hauenstein v. Lynham, 100 U.S. 483, 490 (1880). 122 U.S. 116, 120 (1887). Field found the “most-favored-nation” duty promised in the Danish treaty inapplicable to Hawaii’s “special” duty concessions, “even if conceded to be self-executing by the way of a proviso or exception to the general law imposing the duties.” Id. In an even earlier dissent, Justice Field had affirmed his support for distinguishing treaties according to their need for implementing legislation. Chew Heong v. United States, 112 U.S. 536, 562 (1884) (Field, J., dissenting).


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In Baldwin v. Franks, Field wanted to uphold a conspiracy conviction for hindering by force the execution of U.S. “law.”161 Field reasoned that the 1880 immigration treaty’s commitment to make efforts to prevent discrimination against Chinese immigrants could constitute a “law” for purposes of the criminal statute: Under the Constitution, a treaty between the United States and a foreign nation is to be considered in two aspects – as a compact between the two nations, and as a law of our country. As a compact, it depends for its enforcement on the good faith of the contracting parties, and to carry into effect some of its provisions may require legislation. . . . But in many instances a treaty operates by its own force, that is, without the aid of any legislative enactment; and such is generally the case when it declares the rights and privileges which the citizens or subjects of each nation may enjoy in the country of the other. This was so with the clause in some of our early treaties with European nations, declaring that their subjects might dispose of lands held by them in the United States, and that their heirs might inherit such property, or the proceeds thereof, notwithstanding their alienage.162

Field went on to review other treaties that had operated without a need for legislation, including those that promised foreign nationals a right to trade with the United States and to enter, reside, and do business for that purpose.163 Field then ascribed a similar status to the 1880 treaty’s promise to protect Chinese residents from ill treatment: A treaty, in conferring a right of residence, requires no congressional legislation for the enforcement of that right; the treaty in that particular is executed by the intended beneficiaries. They select their residence. They are not required, as said above, to reside in any particular place, or do business there. A conspiracy to prevent by force a residence in the town or county selected by them appears to me, therefore, to be a conspiracy to prevent the operation – that is, the execution – of a law of the United States, and to be within the letter and spirit of the third clause of [the conspiracy statute].164

Field’s reasoning is especially interesting, because the treaty provision did not promise Chinese residents freedom from ill treatment, but only that the United States would “exert all its powers” to ensure protection from such treatment akin to that given other foreign citizens by treaty.165 Such a duty of means not ends might have suggested that the treaty spoke to the legislature for its enforcement rather than the Court, along the lines suggested in Foster.166 However, Field did not characterize it that way, and the Court later 161

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120 U.S. 678, 705 (1887) (Field, J. dissenting). The defendant had been arrested for physically displacing Chinese immigrants. The majority opinion struck down part of the conspiracy statute under which he had been charged as unconstitutional in its application within a state and found the rest of the statute inapplicable to the defendant. Id. at 689–90, 693–94. Id. at 702–03 (Field, J. dissenting) (citing property protections of the Jay Treaty, 1878 and 1800 treaties with France, and the 1850 treaty with Switzerland). Id. at 703–04 (citing commercial rights in treaties with Italy (1871), Britain (1815), Bolivia (1838), Costa Rica (1851), Greece (1837), and Sweden and Norway (1827)). Id. at 704–05. 1880 Treaty, supra note 92, art. 3 (If Chinese residents “residing in the territory of the United States, meet with ill treatment at the hands of other persons, the Government of the United States will exert all its power to devise measures for their protection and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.”). Foster, 27 U.S. at 314. Even the Baldwin majority, moreover, appeared to concede that the provision was “law,” but took a narrower view of its scope for purposes of defining conspiracy. See Baldwin, 120 U.S. at 693–94.

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agreed, finding “nothing in this provision which excludes judicial cognizance or which confines the remedy of a subject of China, in a given case of hardship, to diplomatic action.”167 The only other discussion of treaty self-execution came in concert with Justice Field’s 1888 pronouncement of the later-in-time rule in Whitney v. Robertson.168 There, the Court reiterated the notion of treaties as contracts to be remedied by diplomacy, while admitting that “[i]f the treaty contains stipulations which are self-executing; that is require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment.”169 In contrast, Field suggested that “[w]hen the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect,” which legislation Congress could modify or repeal.170 In Whitney, the United States had promised the Dominican Republic most-favorednation treatment for its goods via an 1867 treaty, and Congress amended the tariff laws in 1870 to comport with this promise.171 But when an 1876 Hawaii treaty gave Hawaii duty-free treatment, the congressional amendments (which actually preceded the treaty by three weeks) did not adjust the Dominican tariffs.172 The Court insisted on applying the duties to the Dominican Republic as enacted in 1870, holding that “when a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed.”173 The Court did not explain why the 1867 Dominican treaty was non-self-executing or why the 1876 Hawaii treaty did not trump the 1870 tariff bill. Scholars have claimed the Court operated on the principle that treaties on subjects within Congress’s exclusive power – like tariffs and other bills raising revenue – cannot have the status of law, and legislation is the only way to regulate these subjects.174 But it is also possible the Court adopted a different principle – deferring to Congress on whether and how it “executed” the non-self-executing 1867 treaty.175 The Court’s alternative holding, after all, had found the Dominican treaty inapplicable to Hawaii’s special concessions, and if Congress agreed with that view it explains why the Dominican tariffs were not adjusted. But even assuming that the treaties, read together, required an adjustment, the Court 167

168 169 170 171 172

173 174

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United States v. Jung Ah Lung, 124 U.S. 621, 632–33 (1887). There is some evidence that Field thought legislation was necessary under Article 3 of the 1880 treaty, even if he also regarded the treaty itself as law. See supra p. 77; Baldwin, 120 U.S. at 704 (Field, J., dissenting) (“The right or privilege being conferred by the treaty, parties seeking to enjoy it take whatever steps are necessary to carry the provisions into effect. . . . [N]o congressional legislation [is] required to provide that they shall enjoy the rights and privileges stipulated. All that they can ask, and all that is needed, is such legislation as may be necessary to protect them in such enjoyment. That they have, I think, to some extent, in the [conspiracy] clause.” (emphasis added)). 124 U.S. 190, 194 (1888). Id. Id. Id. at 191–92. Id.; see also David Sloss, Non-Self Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 34 n.153 (2002) (noting that the congressional amendments implementing the Hawaii treaty preceded that treaty’s ratification by three weeks). It is not clear from the case, however, how closely the Court itself knew the timeline. Whitney, 124 U.S. at 195. See, e.g., Samuel B. Crandall, Treaties: Their Making and Enforcement 183–99 (2d ed. 1916); see also Sloss, supra note 172, at 34; Carlos Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 718–19 (1995). See supra p. 58.


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might have believed it still had to follow Congress’s implicit interpretation (i.e., imposing duties in the 1870 statute implementing certain of the 1867 treaty requirements, with any additional treaty requirements remaining unexecuted).176 Under this view, the status of the 1876 treaty was irrelevant because it was the “previous treaty [i.e., the 1867 Dominican treaty] not already executed” by Congress that the Court could not enforce until such time as Congress fully executed it.177 In either case, Whitney demonstrated that the concept of non-self-execution could have real consequences. But those consequences were not widely felt, at least from 1861 to 1900. Throughout the period, the Court continued to apply most treaty provisions as law with little consideration of whether the treaty required implementing legislation. To be sure, the Court continued to find that certain treaty provisions were by nature unenforceable (i.e., inchoate rights) and deferred to Congress to translate these and other rights (i.e., claims commission awards) into judicially enforceable standards.178 At the same time, however, property rights, immigration procedures, and criminal due process protections all emerged (while state laws fell) according to the Court’s application of treaties as law.179 The Court employed treaties to dictate the scope of the courts’ jurisdiction and even to regulate individual behavior in ways that the courts could enforce. In Ex parte Newman, for example, the Court held that federal courts were required to dismiss an employment suit involving Prussian sailors because the Prussian Consular Convention assigned jurisdiction over the case to the Prussian Consul.180 In Cotzhausen v. Nazro, moreover, the Court relied on an early multilateral treaty – the Berne Postal Treaty – as sufficient authority for U.S. officials to seize dutiable goods that the treaty prohibited individuals from sending through the mails.181 Notwithstanding Foster, therefore, from 1861 to 1900 the Court continued to regard treaties as law. The period saw the Court exploring the possibilities of non-self-execution without much real impact other than in Whitney. The Court never considered what implementing legislation did to the original treaty’s status as law. On the contrary, it affirmatively considered (and enforced) treaties as law, even where implementing legislation existed.182 In United States v. Rauscher, for example, the Court found that the 1842 extradition treaty was “the supreme law of the land, which the courts are bound to take judicial notice of, and to enforce in any appropriate proceeding the rights of persons 176

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178 179 180 181 182

This assumes – per the Charming Betsy canon – that Congress legislates in conformity with U.S. treaty obligations absent a clear statement to the contrary. Even when Congress is silent, it may actually be interpreting a treaty’s requirements in drafting new legislation that does not otherwise indicate any intent to override that treaty. Thus, I view Congress’s 1870 statute laying and collecting duties as not just the exercise of an Article I, Section 8 power, but also the product of an implicit – if not explicit – interpretation of the 1867 Dominican treaty’s requirements. Admittedly this theory does not explain why the treaty was non-self-executing – although the practice at the time suggests it was widely understood that way – but it does help explain why the 1876 Hawaii treaty did not operate as the later-in-time rule for the Court. But see Sloss, supra note 172, at 33 (concluding that it was the non-self-executing character of the 1876 treaty with Hawaii that dictated Whitney’s application of the later-in-time rule). La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1889); Frelinghuysen v. Key, 110 U.S. 63, 74 (1884); Dent v. Emmeger, 81 U.S. 308, 312 (1872). See supra pp. 67–69. 81 U.S. 152, 168 (1871); see also Wildenhus’s Case, 120 U.S. 1, 17 (1887). 107 U.S. 215, 218 (1882). See supra pp. 71–72.

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growing out of that treaty.”183 The Court’s opinion later acknowledged that Congress had implemented such treaties via statute, but did not suggest that acts of Congress to effectuate these treaties in any way affected their status as federal law.184

D. Proper Method(s) of Treaty Interpretation Throughout the latter half of the nineteenth century, treaty interpretation questions before the Court dovetailed largely – although not exclusively – with questions of private treaty rights.185 But as the Supreme Court looked at the nature and scope of U.S. treaty commitments, it did not have a fixed interpretive method on which to rely. The Court employed a variety of sources to give meaning to a treaty’s text. It occasionally invoked the law of nations to support its reading of a U.S. treaty obligation (e.g., to guarantee preexisting property rights).186 The Court also continued to reference publicists, including old reliables like Vattel, or more contemporary scholars such as Wheaton, Kent, and Lawrence.187 The Court often looked to the history of treaty relations between the parties, and in a few instances it examined a U.S. negotiator’s positions or those taken by the Senate in giving advice and consent to ratification.188 The Court even rested on foreign law to confirm a treaty’s meaning on at least one occasion.189 The Court, however, never harnessed these sources to a single interpretive goal.190 Rather it simultaneously pursued two different sets of interpretive standards that, with hindsight, appear contradictory and results oriented. In one strand of opinions, the Court affirmed the canons of good faith and liberal interpretation adopted in earlier decisions.191 In those cases, almost uniformly, the Court recognized and applied the treaty right 183 184 185

186 187

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189 190

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119 U.S. 407, 419 (1886). Id. at 423. Moreover, because the Court found these statutes fully comported with U.S. obligations under the treaty, none of the later-in-time questions presented in Whitney were raised. See supra p. 78. See supra Part II.A. Sometimes, the Court’s interpretations also implicated public rights. See, e.g., The Peterhoff, 72 U.S. 28, 51 (1867) (interpreting boundary treaty to determine permissible scope of Union blockade during the Civil War); United States v. Texas, 162 U.S. 1, 36 (1896) (boundary parameters set by treaty). See, e.g., United States v. Chaves, 159 U.S. 452, 458 (1895) (reading treaty guarantees for property rights consonant with “the law of nations”); Dent v. Emmeger, 81 U.S. 308, 312 (1872) (same). See, e.g., Geofroy v. Riggs, 133 U.S. 258, 270 (1890) (citing Vattel); United States v. Rauscher, 119 U.S. 407, 416 (1886) (citing Lawrence among others); Chew Heong v. United States, 112 U.S. 536, 539–40 (1884) (citing Vattel and Kent); Haver v. Yaker, 76 U.S. 32, 34 (1870) (citing Wheaton); see also Vattel, supra note 45; Wheaton, supra note 54; Kent, supra note 54; Lawrence, supra note 54. See, e.g., Geofroy v. Riggs, 133 U.S. 258, 271–72 (1890) (considering other French treaties to give meaning to treaty in question); Kinkead v. United States, 150 U.S. 483, 494 (1893) (considering records of U.S. negotiator in property rights question under Alaska Purchase Treaty); United States v. Yorba, 68 U.S. 412, 422–23 (1864) (interpreting treaty in light of provision struck by Senate during advice and consent process). Wildenhus’s Case, 120 U.S. 1, 18–19 (1886) (looking to French court decisions to give meaning to consular treaty with Belgium). The lack of a single coherent approach to treaty interpretation is not entirely surprising. Unlike the detailed framework that has emerged over the last century, nineteenth-century international law paid scant attention to treaty interpretation. Wheaton’s 700-page tome on international law devotes one paragraph to the subject, and only then to recommend classic works by Grotius, Vattel, and Rutherforth. Wheaton, supra note 54, at §287. Kent had more substantive points to make, but still addressed the subject haphazardly within a larger review of treaty types. See Kent, supra note 54, at 418–19. See Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J. 1885, 1911–12 (2005).


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claimed. And when the Court did not find a treaty right? There, the Court employed more “restrictive” or “textualist” approaches without any canonical guidance. To make matters more confusing, the Court’s treaty cases increasingly raised separation of powers questions; namely, what weight – if any – to give to treaty readings favored by Congress or the President. Although the Court continued to assert judicial independence in certain respects – for example, relating to vested or perfect titles – it otherwise recognized that Congress had priority in the interpretation of treaties (via its power to implement them).192 It also began to show signs that the Executive’s position could influence its interpretations. 1. Good Faith and Liberal Interpretation: In The Amiable Isabella in 1821, Justice Joseph Story had emphasized that treaties should be interpreted in good faith to avoid disgrace to the nation or the betrayal of its duties.193 From 1861 to 1900 the Court occasionally invoked the same sentiment in interpreting treaties. In Chew Heong v. United States, the Court emphasized that the honor of the government was at stake in securing reentry rights to Chinese laborers guaranteed by the 1880 immigration treaty.194 Quoting Kent, the Court declared that treaties “are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.”195 For the Court, good faith involved reading treaty text (or the absence of such text) with an eye to the mutual intentions of the two parties (i.e., treating them on equal footing). For example, in Benson v. McMahon, the Court reasoned that it had to look beyond common law definitions of “forgery” to define the offense listed in the Mexican extradition treaty, given the unlikelihood that Mexico (a non-common law nation) intended the term to be defined by common law.196 United States v. Rauscher might also be seen as a good faith interpretation of the British extradition treaty, as Justice Miller knew that the British construed the treaty to incorporate the rule of specialty even in the absence of an explicit provision.197 In all of these cases, moreover, the Court’s invocation of good faith resulted in the interpretation desired by the individual claiming a treaty right. To achieve a good faith interpretation, the Court regularly referred to its companion canon – liberal interpretation. Building on the earlier precedent of Shanks v. Dupont,198 Hauenstein v. Lynham emphasized that “[w]here a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred.”199 Based on this idea, the Court suggested that it would favor 192

193 194

195 196 197

198 199

See supra p. 57, n. 8. To be clear, I regard the Court to give Congress priority in interpretation whenever it deferred to Congress’s implementation of a treaty by upholding what the statute provided over competing characterizations of what the treaty provided or required. 19 U.S. 1, 68 (1821); Chapter 1, p. 16. 112 U.S. 536, 540 (1884); see also United States v. Gue Lim, 176 U.S. 459, 466 (1900). The Court also invoked good faith for Native American treaties. See, e.g., Best v. Polk, 85 U.S. 112, 155–56 (1873); The Kansas Indians, 72 U.S. 737, 755 (1866). Chew Heong, 112 U.S. at 540 (quoting Kent, supra note 54, at 418–19). 127 U.S. 457, 466 (1888). 119 U.S. 407, 430 (1886); see infra p. 86. The Court also often invoked a liberal interpretation rule for statutes that implemented treaties. See, e.g., United States v. Gue Lim, 176 U.S. 459, 467 (1900); Ely’s Adm’r v. United States, 171 U.S. 220, 239 (1898); Alberty v. United States, 162 U.S. 499, 504–05 (1896); Frost v. Wenie, 157 U.S. 46, 58–59 (1895); Lau Ow Bew v. United States, 144 U.S. 47, 61–62 (1892); United States v. Moreno, 68 U.S. 400, 404 (1864). 28 U.S. 242, 249 (1830). 100 U.S. 483, 487 (1880).

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reasonable readings of treaties over impossible ones, and ordinary meanings over those that arose from technical or localized understandings.200 For Native American treaties, the Court confirmed the possibility of “extra liberal” interpretations favored by Chief Justice Marshall, suggesting a treaty’s plain meaning could be set aside to avoid readings against Native American interests.201 Where it did not invoke that principle, the Court still often read Native American treaties liberally.202 Indeed, the Court even interpreted a treaty to not include a Senate proviso imposed in the advice and consent process because it had not been proclaimed or published.203 Geofroy v. Riggs summarized the Court’s method when it pulled together good faith and liberal interpretation: It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their construction words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended.204

As with its good faith cases, moreover, the Court’s use of a liberal interpretation canon regularly resulted in the recognition and enforcement of the treaty rights claimed.205 2. Restrictive and Textual Interpretative Methods: Conversely, where the Court denied the existence of a treaty right or found it inapplicable to the particular claimant, the Court did not employ either the canon of good faith or liberal interpretation.206 In these cases – without explanation – the Court employed “restrictive” or “textual” approaches. Thus, unlike the good faith that apparently motivated its finding of a rule of specialty in Rauscher, in Ker v. Illinois the Court never mentioned good faith (although the two opinions were issued the same day and both involved interpretations of extradition treaties).207 And in Ker – rather than read the Peruvian extradition treaty liberally to cover all removals of defendants from Peru – the Court read it narrowly to 200

201 202

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204 205

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See, e.g., Geofroy v. Riggs, 133 U.S. 258, 271 (1889) (ordinary meaning preferred over local or technical interpretations); Chew Heong v. United States, 112 U.S. 536, 554 (1884) (treaties must be interpreted to avoid impossible results); see also United States v. Auguisola, 68 U.S. 352, 358–59 (1863). The Kansas Indians, 72 U.S. 737, 760 (1866) (quoting Marshall in Worcester v. Georgia, 31 U.S. 515 (1832)); see also Jones v. Meehan, 175 U.S. 1, 11 (1899). See, e.g., Choctaw Nation v. United States, 119 U.S. 1, 28 (1886); see also New York Indians v. United States 72 U.S. 737, 755–57 (1898); Wiggans v. Conolly, 163 U.S. 56, 61 (1896); Spalding v. Chandler, 160 U.S. 394, 404–07 (1896). But see Ward v. Race Horse, 163 U.S. 504, 508 (1895) (opting for narrow reading of “unoccupied lands”); Libby v. Clark, 118 U.S. 250, 255 (1886) (reading limitations on right to convey into treaty). New York Indians v. United States, 170 U.S. 1, 22–23 (1897) (reasoning that it “shocks the conscience” to think that treaty clause could be applied that was “unknown to one of the contracting parties and is kept in the background to be used by the other only when the exigencies of a particular case may demand it”). Geofroy v. Riggs, 133 U.S. 258, 271 (1889). See, e.g., id. at 271 (finding treaty commitment to nondiscrimination in alien inheritance applied to Washington, D.C.); Hauenstein v. Lynham, 100 U.S. 483, 487 (1880) (reading treaty to allow alien claims just like any other litigation where there is no applicable statute of limitations, rather than reading it to suggest a bar on such claims until Virginia adopted a statute of limitations). When the Court in Kinkead v. United States rejected the claim that private ownership of a warehouse was guaranteed by the 1887 treaty purchasing Alaska in favor of U.S. title, the dissent objected that this interpretation did not result in the requisite “liberal construction.” See 150 U.S. 483, 511 (1893) (Shiras, Field, JJ., dissenting). Ker v. Illinois, 119 U.S. 436 (1886).


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afford rights only for defendants within extradition proceedings, denying that it afforded any protections to individuals whose presence was procured without employing those proceedings.208 Similarly, in Bartram v. Robertson, the Court declared that the “mostfavored-nation” clause of the treaty did not extend to “special concessions” in the U.S. treaty with Hawaii, although that would have been a more liberal reading than the one adopted by the Court.209 Sometimes the Court did not admit the possibility of broader or more liberal readings of the treaty, suggesting instead that the text alone resolved the question. In Powers v. Comly, for example, the Court rejected importers’ reliance on a treaty with Persia for lower duties on Persian goods coming to the United States from Europe because the Court found that the treaty only covered imports into the United States directly.210 Whether employing a restrictive or textual approach, however, the results of the Court’s interpretive method in all these cases remained the same – the right claimed either did not exist or did not apply to the case at hand. 3. Judicial Deference in Treaty Interpretation: Justice Horace Gray, writing in 1899, emphasized that “the construction of treaties is the peculiar province of the judiciary.”211 Throughout the nineteenth century, the Court regarded itself as duty-bound to interpret treaties in order to give “full effect” to these instruments under the Constitution.212 At the same time, however, the Court often relied on the political branches to inform how it construed a treaty.213 As in the past, the Court still gave weight to Congress’s views on or relating to treaties.214 Thus, when the validity of a land grant under a treaty of cession turned on the date sovereignty shifted, the Court relied on the political branches to set the date in lieu of undertaking its own investigation.215 As it had in Foster, the Court also followed 208

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211 212 213

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Id. at 441–42. The Court emphasized that Peru had not complained about Ker’s removal, and rejected the idea that the treaty meant Peru could not expel Ker or hand him over to the United States at its discretion. Id. at 442. It reasoned that the treaty only provided defendants’ rights (i.e., the rule of specialty) in the course of extradition proceedings themselves; it did nothing to protect defendants whose presence was procured in the United States by means other than the extradition treaty. Id. at 442–43. 122 U.S. 116, 120 (1887); see also Whitney v. Robertson, 124 U.S. 190, 192–93 (1887) (following Bartram’s interpretation against a broader “most favored nation” clause). Of course, the fact that the Court did not follow the liberal interpretation canon does not necessarily mean its reasoning runs afoul of the good faith principle. 101 U.S. 789, 791 (1879); see also Ornelas v. Ruiz, 161 U.S. 502, 511–12 (1896) (dismissing objection that extradition was for a “political offense” because crime charged fell within treaty text’s enumeration of crimes); Baldwin v. Franks, 120 U.S. 678, 693–94 (1886) (reading treaty narrowly to limit reach of federal conspiracy statute); Burthe v. Denis, 133 U.S. 514, 521 (1890); United States v. Hathaway, 71 U.S. 404, 407 (1867). Jones v. Meehan, 175 U.S. 1, 32 (1899); cf. Sanchez-Llamas v. Oregon, 548 U.S. 331, 334 (2006) (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803), to support a judicial duty to say what treaties mean). Hauenstein v. Lynham, 100 U.S. 483, 490 (1880). Although treaty lawyers today differentiate treaty interpretation (i.e., determining the semantic meaning) from construction (translating that meaning into a workable legal rule in a concrete case), the Court appears to have used the terms interchangeably. Accordingly, I have done the same throughout this chapter. See David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. L. 497, 517–19 (2006–07) (reviewing cases of judicial deference pre-1838). United States v. Yorba, 68 U.S. 412, 423 (1864). One might question whether the Court’s views constitute deference or simply accept as final Congress’s decision about a treaty-related issue. I believe deference accurately captures the Court’s position. When Congress says that sovereignty shifts under a treaty on a date certain, that necessarily involves an interpretation of what the treaty does (even if the treaty does not set the date explicitly, it must do so implicitly for the treaty to shift sovereignty). And to the extent the Court

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congressional interpretations of territorial transfers themselves, thereby excluding later foreign grants over land Congress already understood as within U.S. territory.216 If the treaty meaning was doubtful, moreover, the Court said that Congress could resolve such doubt.217 For example, although Rauscher may be evidence of the Court’s commitment to good faith, it is not necessarily a case in which the Court adopted its own liberal interpretation of the British extradition treaty.218 Rather, Rauscher was a case of judicial deference to Congress in which the Court found two statutes “conclusive on the judiciary of the right conferred upon persons.”219 And in 1895, the Court emphasized that “the mode in which private rights of property may be secured, and the obligations imposed upon the United States fulfilled, belongs to the political department of the government to provide.”220 In accepting Congress’s power to implement a treaty, the Court presumably also accepted Congress’s ability to interpret that treaty for the purposes of such implementation. With respect to the Executive, however, the Court’s position began to shift.221 Earlier views had suggested that the Executive’s treaty interpretation was irrelevant to the Court’s interpretation.222 And the Court did continue to insist during this period that the Executive could not change certain treaties by unilateral interpretation.223 At the same time, on several occasions, the Court acknowledged the importance of the Executive’s views, even if it did not defer to them outright. In United States v. Hathaway, the Court shortened its analysis, finding a treaty did not provide rights to the claimant because it had been annulled and because the Court “concur[red] in the interpretation given to it by the Secretary of the Treasury.”224 The Court also recognized that the Executive’s views could forestall or continue a treaty’s effectiveness. Under the 1868 Claims Convention with Mexico, the United States had agreed that the Commission’s awards would be treated as a “full, perfect and final settlement” of the claim.225 In Frelinghuysen v. Key, however, the Court accepted the President’s determination that claims of fraud before the Commission obviated the treaty’s finality requirement and that the “discretion of the Executive Department . . . cannot be controlled by the judiciary,” where it refused to distribute an award

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218 219

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declines to look behind the date set by Congress, I understand it to defer to Congress’s interpretation of what date the treaty required (or allowed) sovereignty to shift. United States v. Lynde, 78 U.S. 632, 647 (1871) (deferring to Congress’s interpretation of what property transferred with the Louisiana Purchase, thereby rejecting later Spanish claims within that area because they already were part of the United States). United States v. Navarre, 173 U.S. 77, 79 (1899); Geofroy v. Riggs, 133 U.S. 258, 272 (1890) (Court’s construction of treaty “finds support” in federal statute); see also United States v. Texas, 162 U.S. 1 (1896) (upholds Congress’s subsequent approval of a boundary line in lieu of map referenced under the treaty). See supra p. 81. 119 U.S. 407, 424 (1886); see also id. at 423 (if there is “any doubt upon this construction of the treaty itself, the language of two acts of Congress . . . must set this question at rest”). It may be difficult to view this as deference to Congress’s interpretation of the extradition treaty where these statutes implemented all extradition treaties, but it clearly was an instance of deference to Congress more generally. Ainsa v. United States, 161 U.S. 208, 222 (1895). Some scholars have dated the current deference doctrine to In re Ross or later opinions. See, e.g., Robert M. Chesney, Disaggregating Deference, 92 Iowa L. Rev. 1723, 1741 (2007) (citing Ross as the “earliest link in the chain”). However, as discussed herein, the Court had already signaled in several earlier cases that what the Executive said mattered. Chapter 1, pp. 17–18. See, e.g., Kinkead v. United States, 150 U.S. 483, 495 (1893). 71 U.S. 404, 408 (1867); see also United States v. Quimby, 71 U.S. 408 (1867) (following Hathaway). 1868 Mexico Claims Convention, supra note 59, art. V.


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while the President sought to resolve the claims.226 In a similar vein, In re Ross revealed a Court willing to defer to the Executive’s view of the continuing effectiveness of a treaty provision that otherwise appeared to be superseded by a later treaty.227 From 1861 to 1900, therefore, the Court followed multiple interpretive paths. When it wanted to recognize and enforce a treaty right, the Court cited good faith, liberal interpretation, or both. But, when the Court denied the existence or construction of the treaty right claimed, it employed textual or restrictive readings. And, even as it continued to give weight to the views of Congress (or the political branches collectively), the Court began to lay the seeds for a policy of deferring to the views of the Executive alone. Unlike the more uniform approach to treaty interpretation questions in earlier years, therefore, the Court’s dissonant approaches during this period suggest that desired outcomes may have contributed to the Court’s choice of interpretative method.

E. Treaties and State Law From 1861 to 1900 the Court maintained its adherence to the principle derived from Ware v. Hylton that treaties trump state laws.228 In reality, however, the Court saw few cases implicating that rule directly. More often, the Court had to deal with questions of a treaty’s application, such as whether its provisions conflicted with state law at all or what effect congressional grants of power to the states had on earlier treaties. And even as it reinforced treaty supremacy in principle, in practice the Court regularly found ways to ensure that state law actually survived. The Court rarely encountered cases posing a direct conflict between a treaty and state law, but it expressly endorsed treaty supremacy whenever it did so.229 In 1880, in Hauenstein v. Lynham, the Court, after quoting from Ware at length, emphasized: It must always be bourne in mind that the Constitution, laws and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. This is a fundamental principle in our system of complex national policy.230

Hauenstein involved Swiss heirs, whom the Court found were entitled under an 1850 treaty with Switzerland to dispose of property they had inherited in Virginia and “to withdraw and export the proceeds thereof without difficulty.”231 Virginia argued that the treaty did not apply given how long the heirs had taken to invoke their rights, thereby leaving the matter under Virginia common law, which prohibited alien inheritance.232 226

227 228 229

230 231 232

110 U.S. 63, 75 (1883). It did matter to the Court, however, that Congress had not acted to restrict the President’s authority to investigate the fraud and withhold distributing any funds relating to the award in question. Id. at 74. 140 U.S. 453, 474–75 (1891). See supra p. 57. If the Court discovered an alternative holding to treaty supremacy, it sometimes opted for that route instead. Thus, in Yick Wo v. Hopkins, the Court used the Fourteenth Amendment instead of the 1880 treaty with China to strike down a California ordinance that discriminated against Chinese laborers. 118 U.S. 356, 373–74 (1886). 100 U.S. 483, 490 (1880). Id. at 486; Treaty between the United States and the Swiss Confederation, U.S.-Switz., 25 Nov. 1850, 11 Stat. 587. Hauenstein, 100 U.S. at 487. Virginia statutes did not cover the case: its 1860 statute did not apply, and its 1870 Revised Code (which removed all discrimination against aliens’ property rights) postdated the death that generated the inheritance question before the Court. Id. at 484–86.

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The Court found this position unpersuasive, suggesting that the heirs had time to make their claim, and if so, the fact “[t]hat the laws of the State, irrespective of the treaty, would put the fund into her coffers, is no objection to the right or the remedy claimed. The efficacy of the treaty is declared and guaranteed by the Constitution.”233 Ten years later, the Court maintained the same stance in Geofroy v. Riggs.234 Geofroy involved the ability of French citizens living in France to inherit property in the District of Columbia, which Congress had decreed in 1801 would be governed by Maryland law “as it then existed.”235 The Court found that, although Maryland statutes and common law circa 1801 did not permit alien inheritance, French inheritance rights were guaranteed by an 1800 treaty with France. The Court invoked the treaty to permit the inheritance: “[T]he treaty, being part of the supreme law of the land, controlled the statute and common law of Maryland whenever it differed from them.”236 The treaty supremacy at stake in Hauenstein and Geofroy differed from earlier concerns that state noncompliance would lead the United States into disputes, war, or worse. Conflict with France – let alone Switzerland – seemed unlikely, particularly when Virginia and the District of Columbia no longer discriminated against alien inheritance.237 In other contexts, however, the potential for conflict remained real. The need to preserve peace with Native Americans – at a time of frequent fighting – helps explain the Court’s decision to trump state taxation laws in The Kansas Indians.238 And although state law was not at issue in Rauscher, the Court appears to have interpreted an implied right into the British extradition treaty as the “law of the land” to ensure an end to state prosecutions in violation of that right; such prosecutions had already caused significant and serious disruptions in the Anglo-American relationship.239 Thus, the second half of the nineteenth century reveals a Court still committed to treaty supremacy if it found conflicts with state law. At the same time, the Court often allowed state law to stand by finding no treaty conflict. In Wildenhus’s Case, for example, the Court refused to enjoin a New Jersey homicide prosecution under the Belgian Consular Convention.240 Although that treaty gave the Belgian Consul exclusive jurisdiction over crimes on board Belgian vessels, the Court found that homicide committed on such a vessel fell within the treaty’s exception to jurisdiction in cases 233 234 235 236 237 238

239

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Id. at 488. Virginia apparently rested its argument on the treaty’s inapplicability rather than challenging its supremacy directly. See id. at 490. 133 U.S. 258 (1889). Id. at 267. In 1889, Maryland’s law no longer discriminated against aliens, but the Court applied Maryland’s law as of 1801 given the congressional directive to do so. Id. Hauenstein, 100 U.S. at 485 (discussing Virginia’s Revised Code of 1873); Geofroy, 133 U.S. at 272 (discussing Congress’s Act of March 3, 1887). The Kansas Indians, 72 U.S. 737, 752, 754 (1866) (finding state tax laws did not cover Native Americanowned land that the United States had guaranteed via treaty would never be subjected to state law); see also New York Indians v. United States, 72 U.S. 761 (1866) (same). See 119 U.S. 407, 430 (1886) (noting how its ruling “relieves” pressure on the executive branch and removes the problem of state noncompliance); Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of United States v. Rauscher, 34 Va. J. Int’l L. 71, 71 (1993). Before Rauscher, the applicability of the rule of specialty had generated significant friction in the Anglo-American relationship. At the federal level, an 1876 modus vivendi ensured the rule’s application, but it did not bind the States, making Rauscher the vehicle for doing so. See id. at 130–32. 120 U.S. 1, 18 (1887).


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of “disorder” disturbing the public tranquility.241 Rather than finding an exception, in Ker v. Illinois the Court found the Peruvian extradition treaty wholly inapplicable to the defendant’s prosecution under Illinois law after his kidnapping by a U.S. official.242 And in Pennock v. Commissioners, the Court found that land owned by a Native American woman was taxable by the state of Kansas, where, unlike The Kansas Indians case, the treaty had not guaranteed the property in question any immunity.243 Similarly, in Ward v. Race Horse, the Court reasoned that a treaty could have guaranteed hunting rights in conflict with Wyoming law, but found that the treaty in question did not do so.244 Beyond reading treaties and state statutes harmoniously, the Court also introduced at least one new caveat on a treaty’s effectiveness, which had the result of insulating a state law from a conflicting treaty. In Haver v. Yaker, the Court created an exception to the general rule binding nations to their treaty commitments from the date of signature once they exchanged ratifications (i.e., bringing the treaty into force retroactively).245 Given the ability of individual treaty rights to operate as “the law of the land,” the Court reasoned that those rights could only operate prospectively from the date of the treaty’s ratification.246 As a result, the Court upheld Kentucky’s restrictions on alien inheritance, notwithstanding a later treaty banning those restrictions, because the death in question occurred after treaty signature, but before the exchange of ratifications.247 Even as the Court elaborated its own rules for regulating the relationship between treaties and state law, it paid close attention to what Congress had said (or not said) about such issues. In The Kansas Indians for example, Congress reserved the rights of Native American nations in the organic act and the act for the admission of Kansas, signaling its continued support for earlier treaties.248 More than a decade later (and, perhaps not coincidently, as the threat posed by Native American conflicts began to wind down), the Court found in United States v. McBratney that treaty rights limiting jurisdiction over a reservation to the federal government alone were lost when (unlike The Kansas Indians) Congress failed to reserve them in Colorado’s admission to the Union.249 That ruling allowed Colorado (and later other States) to exercise criminal law over crimes that would otherwise have remained exclusively federal under the treaty.250 McBratney thus implicated not only the treaty–state law relationship but the treaty–federal law relationship as well.251 And by prioritizing the congressional act of admitting Colorado to the Union over treaty rights that excluded Native American reservations from state 241 242 243 244 245 246 247 248 249 250 251

Id. at 17–18. 119 U.S. 436, 442 (1886). 103 U.S. 44, 48–49 (1881). 163 U.S. 504, 508 (1896) (reading treaty right to hunt “unoccupied lands of the United States” not to apply to all literally unoccupied lands). 76 U.S. 32, 34–35 (1870). Id. at 35. See id. at 32–33. 72 U.S. 737, 754 (1866). 104 U.S. 621, 624 (1882). Id.; see also Draper v. United States, 164 U.S. 240, 243 (1896) (applying McBratney to give Montana jurisdiction over crimes that had been federal under an earlier Native American treaty). Indeed, the McBratney Court specifically rooted its holding in the later-in-time rule. See 104 U.S. at 623; Draper, 164 U.S. at 243 (same).

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law, the Court’s opinion suggests that it regarded the federal relationship as the more important of the two.

III. Conclusion Between the poles of the Civil and Spanish-American Wars, U.S. history accounts have tended to focus on domestic developments – U.S. foreign affairs questions were rarely popular or pressing.252 Of course, crises emerged such as those involving Chinese immigration or continuing Anglo-American tensions. On the whole, however, foreign affairs law scholars have seen little in the era warranting close attention. But if this chapter’s exposition of a relatively narrow question – the Supreme Court’s treaty doctrine – serves as any guide, the conventional wisdom has surely underappreciated the developments from 1861 to 1900. Throughout the period, the Court laid more bricks in the foundational principles developed at the Framing. Treaties still trumped state law. Treaties made regular appearances in cases before the Court. And the Court took these instruments seriously, affording individuals a host of private rights and judicial remedies in furtherance of their terms. The canons of good faith and liberal interpretation continued to drive judicial decision in some – if not all – cases, albeit apparently as a way to justify the desired result. At the same time, change came to the Court as it dealt with an increasingly active (and powerful) Congress, more treaties with non-Europeans, and a shifting conception of both domestic and international law. The Court acknowledged that Congress had a significant role to play in treaties. It adopted a theory of equivalence between statutes and treaties that paved the way for a later-in-time rule, which in practice gave Congress the last word on everything from state law to war premiums. Meanwhile, the Executive’s views began to garner serious attention. The Court experimented with new interpretive methods as well, primarily to justify decisions not to apply treaties as claimed. Similarly, it elaborated the idea of non-self-execution, suggesting that not all treaties warrant judicial enforcement. Thus, even as the period exhibited much continuity, it reflected a great deal of change as well. And in many respects those changes in the Court’s treaty doctrine continue to be felt today. Succeeding generations of foreign affairs lawyers have wrestled with questions of self-execution, with little more success than Justice Field’s pioneering efforts. The later-in-time rule has become settled law, while efforts to interpret treaties more strictly or in accordance with executive views have blossomed into doctrines of their own. Simply put, this is an era worthy of sustained attention by foreign affairs lawyers, regardless of whether they look to it for evidence of continuity, change, or both. 252

See Bailey, supra note 24, at 391.

3 Customary International Law in the Supreme Court, 1861–1900 David J. Bederman∗

In the period 1861 to 1900, the U.S. Supreme Court under the Chief Justiceships of Roger Taney, Salmon Chase, Morrison Waite, and Melville Fuller presided over a jurisprudential transformation of American law.1 But its impact on the development of U.S. foreign relations law has not been as well studied. Bracketed between the extraordinary contributions of the Marshall Court2 and the emergence of the United States as a world superpower in the aftermath of World War I, the period from the Civil War to the end of the nineteenth century has been an underappreciated epoch in studies of the legal dimensions of America’s place in a global order. Separated in time from both the originalist moment of the Founding and the first years of the New Republic, as well as from the twentieth century’s Pax Americana, the late 1800s seem like a backwater of jurisprudential insight for contemporary understandings of the relationship between international law and U.S. law. This seems particularly so with the role of customary international law. Partly, of course, this may be a function of customary international law’s amorphous character and function in the matrix of legitimate sources of law under the U.S. constitutional order, which I discuss in more detail later. But there is also an empirical challenge to any study of U.S. Supreme Court cases involving customary international law: in some periods of the Court’s operation, there are not many of those cases, and those that are reported are of an ambiguous and problematic nature. The late nineteenth century is precisely one of these times. Not only is the assemblage of the Court’s customary international law cases somewhat thin during this period,3 but the Justices also evidenced ∗ 1

2

3

K. H. Gyr Professor of Private International Law, Emory University. See Carl B. Swisher, 5 History of the Supreme Court of the United States: The Taney Period, 1836–64 (2010) (Holmes Devise series); Charles Fairman, 6 & 7 History of the Supreme Court of the United States: Reconstruction and Reunion, 1864–1888 (2010) (Holmes Devise series); Owen W. Fiss, 8 History of the Supreme Court of the United States: Troubled Beginnings of the Modern State, 1888–1910 (2006) (Holmes Devise series). See, e.g., Benjamin Munn Ziegler, The International Law of John Marshall: A Study of First Principles (1939); Frances Howell Rudko, John Marshall and International Law: Statesman and Chief Justice (1991). As an admittedly crude metric, I conducted a search in the Westlaw database of all U.S. Supreme Court cases decided between 1861 and 1900 (inclusive) that used the phrases “international law” or “law of nations” in some combination. That produced a data set of 236 cases, including headnote annotations.

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substantial analytical confusion as to exactly when cases were being decided on the basis of customary international law. Particularly difficult to understand and appreciate today is the relationship between customary international law and general maritime law, as robustly reflected in the decisions of the Court from the late nineteenth century. This relationship is a major theme of this chapter. A last general consideration is a curiosity generated by that great bane of historiography: periodicity. The editors of this volume, in their wisdom, selected the period 1861 to 1900 as the relevant unit of analysis for the second part of this treatment on the Supreme Court and international law. I assume that this choice was no accident. The dates selected neatly bracket the Civil War (at one end) with the turn of the twentieth century (at the other). These dates, almost perfectly, also book-end two immensely significant – some would say iconic – Supreme Court decisions on the foreign relations power: the Prize Cases, decided in 1863,4 and The Paquete Habana, decided in 1900.5 Indeed, one of the challenges in surveying the Supreme Court’s customary international law jurisprudence of the late nineteenth century is to resist fixating on the landmark terminal points of the period under review, while ignoring all that transpired in between. Rather, this chapter takes the position that a real revolution in understanding the nature of customary international law and its role in U.S. law occurred between these two decisions. In many respects, the Prize Cases and The Paquete Habana are artifacts of very distinct periods in jurisprudential thought about the place of international law in the American legal system. There is, for sure, a common thread that runs between them, but it is their structural and philosophical differences that are most marked. The disjunction between these two cases can only be understood with reference to interpretive and analytical developments that occurred on the Court between 1863 and 1900. And these transitions very much resonate with contemporary debates about customary international law’s role and function. We are, in many respects, replaying a very old debate in American jurisprudence. This chapter unfolds in two principal parts. The first – and most lengthy – considers the Supreme Court’s changing conceptions, between 1861 and 1900, of the nature of customary international law. It includes customary international law’s jurisprudential foundations and the changing balance (already perceived in earlier periods) between natural and positive bases of obligation for international norms of conduct, as well as the mandatory or voluntary force of those commitments. This discussion also analyzes the relationship between customary international law and general maritime law as understood and appreciated by the Supreme Court through its opinions during this period. Next, there is a careful and systematic analysis of the types of sources and materials the Court employed to reach decisions regarding the content of customary international law or general maritime law. Additionally, this part considers the post–Civil War Court’s

4 5

(A similar search of the period from 1901–1945 generated a measly 143 hits; for the period 1946–2000, 153 hits. In contrast, the period before 1861 generated 280 hits.) For the period under review here, I found only about thirty decisions to be of true relevance for analysis. As a caveat, this chapter does not consider the lines of Supreme Court jurisprudence between 1861 and 1900 concerning the rights of Native American tribes or the applicability of foreign laws to areas conquered by the United States in the Mexican War. See, e.g., United States v. Choctaw Nation, 179 U.S. 494 (1900); Ely’s Adm’r v. United States, 171 U.S. 220 (1898); United States v. Castillero, 67 U.S. 17 (1863). 67 U.S. 635 (1863). As has become the judicial and scholarly convention, I refer to these as the Prize Cases, as opposed to the more formal style, The Brig Amy Warwick. 175 U.S. 677 (1900).

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treatment of comity. Finally, it is worth deliberating about how the Court’s technique or methodology of customary international law norms evolved and matured during this time, culminating in the decisions in The Paquete Habana and The Panama.6 The second part of this chapter examines how, precisely, the Court came to its famous conclusion in The Paquete Habana that “international law is part of our law.”7 This analysis requires one to understand how customary international law and general maritime law were seen as matters of judicial notice and how they were received into U.S. law. That inevitably leads to a consideration of the status of customary international law and general maritime law as some form of “general law.” Next, this part assesses the way that the Supreme Court understood customary international law and general maritime law to interact with congressional enactments and with state laws. It also addresses the interaction between customary international law and presidential power, particularly the President’s power to disclaim or outright violate a preexisting norm of customary international law. Not surprisingly, any discussion of the President’s power to disobey or to selectively enforce customary international law turns back to the jurisprudential basis of customary international law in this nation’s constitutional tradition. For these reasons, this chapter takes an integrated approach to analyzing both the nature of customary international law and its doctrinal place in U.S. law.

I. The Nature of Customary International Law A well-established paradigm for understanding the jurisprudential evolution of customary international law has been the shifts between natural law and positive law bases of obligation. Why do states respect a particular norm? Do they do so because of some exogenous sense of international morality or “right reason,” or rather from a desire to conform their behavior to already established patterns of conduct? The metaphor of international legal obligation as a pendulum that has swung, over time, from a strongly natural law position (as in the writings of Grotius at the dawn of the modern nation-state’s Westphalian system), to a robustly positivist one (particularly evident in the years leading up to World War I and the interwar period), to a more neutral position today, is an attractive one.8 But it is also incomplete, and to provide a coherent picture is no abstract meditation for this contribution. The characterization of customary international law by its natural or positive features has been a particularly American preoccupation. As presented in Chapter 1 and as described by leading intellectual historians,9 the debate between natural and positive bases for customary international law was rooted in the ultimate sources of international legal obligation. The naturalist position espoused the possibility that norms could be exogenous to the international system, imposed “from above” (so to speak) through systems of religious, moral, or ethical behavior. In contrast, international law positivism embraced the position that all rules of international conduct had to be internalized within the international system and accepted by states, which were the relevant actors 6 7 8 9

176 U.S. 535 (1900). 175 U.S. at 700. I acknowledge that I have helped popularize it. See David J. Bederman, The Spirit of International Law 5–9 (2002). See Mark Weston Janis, The American Tradition of International Law: Great Expectations, 1789–1914 (2004).

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and subjects of international law in the nineteenth century. In U.S. jurisprudence, this debate reached its peak in the slave-trading cases decided in the 1820s, in which international law positivism, as reflected in Chief Justice John Marshall’s opinion in The Antelope, ostensibly prevailed over naturalist conceptions espoused by Justice Joseph Story.10 But The Antelope was neither the conclusion of the debate nor the end of the jurisprudential controversy over the bases of obligation in international law. As is manifest in the Supreme Court’s customary international law decisions between 1861 and 1900, natural law bases of obligation were not entirely dead. Rather, they were transmuted into different idioms.

A. Natural and Positive Overtones in the Court’s Decisions In examining the U.S. Supreme Court’s customary international law decisions between 1861 and 1900, one is struck by the relative lack of introspection about the character of customary international law. Unlike the famous colloquy between Marshall and Story, the Justices of the Taney, Chase, Waite, and Fuller Courts were not as openly curious or reflective about the nature of customary international law.11 But there were significant moments and passages in the Court’s international law opinions of this period that are worth narrating in some detail. One must also examine the Court’s handling of admiralty cases under the general maritime law during this period to gain a complete picture. General maritime law cases were subsumed in the Justices’ understanding of private international law – the ordering of affairs as between transnational actors, relationships, and incidents – which they viewed as a proper topic of regulation by customary international law.12 But general maritime law could also arise in strictly domestic contexts, and even so, considerations of consistency between U.S. maritime law and foreign law were paramount. The set of significant general maritime law cases decided by the Supreme Court is large (nearly a dozen in number), and, taken together, the cases provide the missing context for the Court’s jurisprudence on the nature of customary international law. 1. Decisions with Naturalist Overtones: The talismanic Prize Cases begin the era under review. As discussed in more detail in Chapter 4, the Prize Cases arose from President Lincoln’s proclamation of a blockade of southern ports in April 1861. Congress later authorized him to declare a state of insurrection by the Act of July 13, 1861, and under the Act of August 6, 1861, it retroactively ratified all Lincoln’s military actions. The Prize Cases involved the seizure of vessels bound for or coming from Confederate ports prior 10

11

12

23 U.S. 66, 115 (1825). Contra United States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (C.C.D. Mass. 1822) (Story, J.) (ruling that the slave trade was contrary to the natural morality of the law of nations). See Chapter 1, pp. 35–36. I follow the convention of the other authors in this volume of distinguishing “international law positivism” (when referring to the debate between positive and natural bases of international legal obligation) from “domestic law positivism” (referring to the jurisprudential revolution brought by the Supreme Court’s Erie decision, as discussed in Chapter 7). Arguably, the one exception in this regard was Justice Gray. But by the time he was writing his landmark opinions in the late 1890s, the international law version of the positivism–naturalism debate was all but resolved. See The Belgenland, 114 U.S. 355, 362–63 (1885) (“[W]hen acted on the high seas [acts of salvage or collision], between persons of different nationalities, come within the domain of the general law of nations, or communis juris, and are prima facie proper subjects of inquiry in any court of admiralty.”).


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to July 13, 1861. Writing for the Court, Justice Robert Grier had the opportunity to connect the substantive issues of customary international law before the Court (when is war presumed to have been initiated and do the laws of war apply in a domestic setting) with the constitutional matter for which the case is now famous (the President’s power to unilaterally suppress rebellion).13 After briefly canvassing sources on the relevant content of customary international law – including an obliging citation to Vattel and to an English High Court of Admiralty decision – the Court reached this conclusion as to the interplay of customary international law and the President’s powers: The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this Court are now for the first time desired to pronounce, to wit: That insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the Government by traitors, in order to dismember and destroy it, is not a war because it is an “insurrection.” Whether the President in fulfilling his duties, as Commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. “He must determine what degree of force the crisis demands.” The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.14

This passage’s full import is unpacked in Part II of this chapter, but for this discussion, the critical question is what Justice Grier may possibly have meant by his elliptical statement that “[t]he law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world.”15 On the surface, this seems a deliberate mixing of natural and positive idioms for international law, neatly balanced in equipoise. Natural law is reflected in “the common sense of the world,” a more modern formulation of the “right reason” that Grotius would have understood as the basis of international law obligation.16 But in equilibrium with this is a positivist basis for international law, rooted in “common consent.” Justice Grier does not elaborate whether that “common consent” is based on the practices of nations or on the views of other political actors or is derived from a consensus of other sources. Based on his use 13 14 15 16

See Chapter 4, pp. 142–44. 67 U.S. at 670. Id. See Hugo Grotius, The Law of War and Peace 38 (De Jure Belli ac Pacis) (Francis W. Kelsey trans., 1925) (1625) (“[T]he law of nature is a dictate of right reason.”) (bk. 1, ch. I, para. 10); see also Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant 79–82 (1999); David J. Bederman, Reception of the Classical Tradition in International Law: Grotius’ De Jure Belli ac Pacis, 10 Emory Int’l L. Rev. 1, 8 n.26 (1996) (“Grotius’ consideration of universality and right reason tracks our modern notions of the formation of customary international law, including the requirements of a general practice and opinio juris (a sense that a practice is carried out because of legal obligation.”).

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of both foreign municipal decisions and publicists’ writings as evidence of a customary international law rule (in this instance, that a state of war can exist without formal declaration),17 it is by no means clear what precise evidence showed “the common consent . . . of the world.” Nor can the Prize Cases be considered an aberration with respect to the Court’s continued adherence or loyalty to natural law principles in the framing of international norms. The dual character of general maritime law was described in the first significant maritime case decided by the Court after the Civil War. In The China, the question was whether a shipowner (in personam) or the ship itself (in rem) should be liable for the navigational faults of a compulsory pilot (one required by statute) in charge of the vessel at the time of an accident.18 In The China, the vessel under pilotage was foreign-flagged.19 In concluding that the vessel remained liable in rem, despite the nonculpability of the shipowner or master, Justice Noah Swayne observed, “Maritime jurisprudence is a part of the law of nations. We have been impressed with the importance of its right administration in this case.”20 Even more pertinently, he noted that “[t]he maritime law as to the position and powers of the master, and the responsibility of the vessel, is not derived from the civil law of master and servant, nor from the common law. It had its source in the commercial usages and jurisprudence of the middle ages.”21 Taken together, The China’s characterization of general maritime law was that it reflected a private branch of international law – with its historic roots in “commercial usages and jurisprudence.” Viewed another way, if customary international law was positively driven by the practice of nations, general maritime law was directed by the usages of merchants as validated by other sources (the writings of publicists or the decisions of municipal tribunals). Supreme Court decisions of this period consistently highlight this hybrid character of general maritime law.22 For example, there was this extended discussion of the relationship between general maritime law and the law of nations in Justice Joseph Bradley’s 1871 decision in New England Mutual Marine Insurance Co. v. Dunham,23 deciding that contracts of marine insurance were within the admiralty jurisdiction of federal courts: The admiralty courts were originally established in [England] and other maritime countries of Europe for the protection of commerce and the administration of that venerable law of the sea which reaches back to sources long anterior even to those of the civil law itself; which Lord Mansfield says is not the law of any particular country, but the general law of nations; and which is founded on the broadest principles of equity and 17

18 19 20 21 22

23

See 67 U.S. at 667–69. The Court also cited its earlier decision in The Santissima Trinidad, 20 U.S. 283, 337 (1822). The Court in the Prize Cases also considered some specific aspects of whether ships or cargoes were subject to capture as enemy property or contraband, but it is by no means clear whether it relied on general principles of customary international law for such determinations. See 67 U.S. at 674 (distinguishing writings of Fleta and Lord Coke). 74 U.S. 53 (1869). Id. at 58. Id. at 69. Id. at 67. See, e.g., The Maggie Hammond, 76 U.S. 435, 452 (1870) (“[M]aritime law . . . partakes more the character of international law than any other branch of jurisprudence.”) (citing George Joseph Bell, Commentaries on the Laws of Scotland (6th ed.)). 78 U.S. 1 (1870).


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justice, deriving, however, much of its completeness and symmetry, as well as its modes of proceeding, from the civil law, and embracing, altogether, a system of regulations embodied and matured by the combined efforts of the most enlightened commercial nations of the world.24

As in the Court’s customary international law decision in the Prize Cases, there was a deliberate blending here of positive and natural law idioms. On the one hand, there is emphasis on “a system of regulations . . . by the combined efforts of the [world’s] most enlightened commercial nations,” which resonates with the Court’s positivist mantra that customary international law depends on “the acts and usages of civilized nations.”25 On the other hand, there is also a persistent invocation that general maritime law, like customary international law, is “founded on the broadest principles of equity and justice,” without necessary reference to the views of maritime law commentators, the decisions of foreign admiralty courts, or the decrees of maritime powers. Justice Bradley’s opinion in The Lottawanna26 may actually reflect the most mature statement of naturalist norms for customary international law during this period. Admittedly, the relevant discussion in the case concerns the content of general maritime law norms with respect to whether a party who extended credit to the account of a vessel in its home port (for supplies, repairs, or “other necessaries”) could enforce such by a maritime lien within the admiralty jurisdiction of U.S. federal courts.27 The Lottawanna was a U.S.-registered vessel, so there was not even a private international law angle to the case (as there would have been if the ship had been foreign-flagged and the lien for necessaries had been made in a foreign port).28 Nevertheless, the Court characterized the case as governed by general maritime law and characterized general maritime law as a legal system that should be a uniform law founded on natural reason and justice. Hence the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. . . . It will be found, therefore, that the maritime codes of France, England, Sweden, and other countries, are not one and the same in every particular; but that whilst there is a general correspondence between them arising from the fact that each adopts the essential principles, and the great mass of the general maritime law, as the basis of its system, there are varying shades of difference corresponding to the respective territories, climate, and genius of the people of each country respectively. . . . This view of the subject does not in the slightest degree detract from the proper authority and respect due to that venerable law of the sea, which has been the subject of such high encomiums from the ablest jurists of all countries; it merely places it upon the just and logical grounds upon which it is accepted, and with proper qualifications, received with the binding force of law in all countries.29 24 25 26 27

28 29

Id. at 23. Hilton v. Guyot, 159 U.S. 113, 163 (1895). 88 U.S. 558 (1874). Id. at 571 (“[B]y the general maritime law, those who furnish necessary materials, repairs, and supplies to a vessel, upon her credit, have a lien on such a vessel therefor, as well when furnished in her home port as when furnished in a foreign port, and that the courts of admiralty are bound to give effect to that lien.”). See id. at 560–61 (statement of the case). Id. at 572–73, 574.

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The Court’s significant caveat that general maritime law must be incorporated by individual nations, and thereby be subject to subsequent unilateral changes, is considered later because it has ramifications for understanding the binding nature of all international norms, including customary international law. But the important point here is that the Court understood the nature of general maritime law to be premised on “natural reason and justice” as confirmed in the “high encomiums from the ablest jurists of all countries.” As in the Prize Cases, the prevailing approach employed by the Court in The Lottawanna was to determine the content of an international norm (or a domestic norm having transnational effects) by reference to first principles. This did not, of course, preclude recourse to actual state practice (however manifested), but the rhetoric of these two opinions is by no means an unqualified endorsement of purely positivist conceptions of international law. Indeed, it was the continued – and amorphous – role of natural law principles in forming general maritime law rules that drew Justice Nathan Clifford’s dissent in The Lottawanna. The question for resolution was whether maritime liens could enforce loans to procure necessaries for a vessel in its home port. The majority, Justice Bradley writing, held that general maritime law – even if proved as supporting home-port liens – could not supplant prior established U.S. law on the subject. The majority viewed general maritime law as the product of “natural reason and justice.”30 And it was on that ground (as confirmed in prior established case law) that the Court rejected the idea of home-port liens.31 In response, Justice Clifford’s dissent emphasized that a lack of uniformity in the maritime law would “lead to unparalleled mischiefs and perplexities. Commerce requires more sensible rules of decision, and those whose interests are embarked in such perilous pursuits are entitled to better protection than such rules of decision afford.”32 Clifford went on to challenge the majority’s assumption that foreign commercial practices could, in the absence of a binding code or treaty on maritime law, be ignored in favor of the “natural reason and justice” of the American position against home-port liens: Unless the principles embodied in the ordinances, treatises, sea laws, digests, and codes adopted by the countries where the civil law prevails, constitute, to the extent that they concur in the rule of decision, the general maritime code as known in judicial investigation, it is difficult even to imagine what does, as it is known to every legal reader of judicial history that those countries never convened, as in a congress of nations, and ordained a system of maritime regulations which can properly be regarded as the standard authority upon that subject. Such a maritime code as that referred to . . . does not exist; and if not, [are] all the codes of the respective countries which adopt the civil law are to be regarded as mere local laws[?]33

Justice Clifford’s last rhetorical point was significant because there was a need to distinguish the lex specialis of particular maritime nations from the widely applicable general 30 31

32 33

Id. at 572, 574. See id.; see also The Elfrida, 172 U.S. 186, 203 (1898) (observing in a case about salvage contracts that “the maritime usages of foreign countries are not obligatory upon us, and will not be respected as authority, except so far as they are consonant with the well-settled principles of English and American jurisprudence.”). The Lottawanna, 88 U.S. at 594–95 (Clifford, J., dissenting). Id. at 595–96 (Clifford, J., dissenting).


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maritime law. If a norm was truly validated as general maritime law, it was not to be regarded as some species of foreign law.34 2. Decisions with Positivist Outlooks: This ambiguity in invoking natural and positive tropes for customary international law was to prove to be a major leitmotif of Supreme Court decisions of this period. In The Peterhoff,35 one of the last Civil War–era prize cases, Chief Justice Chase offered this pithy assessment of the legality of “paper blockades” – proclaimed restrictions on entry into enemy ports unsupported by actual naval force or interdiction power: “It must be premised that no paper or constructive blockade is allowed by international law. When such blockades have been attempted by other nations, the United States have ever protested against them and denied their validity. Their illegality is now confessed on all hands.”36 Chase’s vision of customary international law, at least as can be gathered from this statement, appears to be more positivist than that reflected in the earlier holding in the Prize Cases. His emphasis appears to be on the actual positions taken by nations in response to assertions of authority by other countries. The surest evidence of a norm of customary international law, by this account, is whether it is acquiesced to, or remonstrated against, by other nations. Chase’s assessment shares much in common with Chief Justice Marshall’s famous formulation of a “struggle for law” in Church v. Hubbart, where he opined that if a coastal state’s assertions of control were “such as unnecessarily vex and harrass foreign lawful commerce, foreign nations will resist their exercise. If they are . . . reasonable and necessary to secure their laws from violation, they will be submitted to.”37 Chase’s rhetorical emphasis on whether a norm of customary international law has been “confessed on all hands”38 would seem to demand a high degree of uniformity or consensus based on the actual practice of nations. Ultimately, Justice Clifford prevailed in his view that general maritime law was purely positive in character and could be demonstrated by the actual practices of merchants as recognized by maritime nations.39 This position was largely validated in Justice William Strong’s 1871 majority opinion for the Court in The Scotia, concerning a collision between an American vessel and British ship on the high seas. At issue was the British ship’s navigational fault for failure to display the proper running lights.40 The Scotia’s discussion of general maritime law as part of international law was to have a profound 34

35 36 37 38 39

40

See, e.g., Liverpool & G.W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 443–44 (1889) (“It was also argued in behalf of the appellant that the validity and effect of this contract, to be performed principally upon the high seas, should be governed by the general maritime law, and that by that law such stipulations are valid. To this argument there are two answers: First. There is not shown to be any such general maritime law. . . . But those decisions and opinions [relied upon by the appellant] do not appear to have been based on general maritime law, but largely, if not wholly, upon provisions or omissions in the codes of the particular country.”). 72 U.S. 28 (1866). Id. at 50. 6 U.S. 187, 235 (1804). 72 U.S. at 50. See, e.g., The City of Washington, 92 U.S. 31, 31 (1876) (Clifford, J.) (“Usages, called sea laws, having the effect of obligatory regulations, to prevent collisions between ships engaged in navigation, existed long before there was any legislation upon the subject, either in this country or in the country from which our judicial system was largely borrowed.”). 81 U.S. 170, 170 (1872). Another collision case, The Sapphire, 78 U.S. 164, 168–69 (1871), was significant for finding continuity of state identity in cases of changes of government.

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impact on later decisions, most notably in The Paquete Habana.41 Especially trenchant was this extract from Justice Strong’s opinion: [W]hat was the law of the place where the collision occurred, and at the time when it occurred[?] Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. . . . And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations?42

This passage’s thrust is that general maritime law, like all customary international law, is premised on “generally accepted . . . rule[s] of conduct.” Only the “general assent” or “concurrent sanction” of nations can convert a practice or usage into “universal obligation” and “sanction.”43 Customary international law’s jurisprudential position as a positive source of law – later embraced in Hilton v. Guyot and The Paquete Habana – was thus fully anticipated by the Court in its earlier general maritime law opinions. Even though the Court noted in Ralli v. Troop that the “maritime law, or law of the sea, [was to be] distinguished from the municipal law, or law of the land,”44 in truth, general maritime law was simply the lex maritima version of the law of nations, subject to the same strictures as to its formation, application, and proof. It is with these significant premises established that we come to the Supreme Court’s 1900 decision in The Paquete Habana. Inasmuch as it offers a statement as to the nature of customary international law, Justice Horace Gray’s opinion is derivative of earlier rulings, but unquestionably his focus is on the positive aspects of actual state practice. The opinion consistently refers to a rule of customary international law emerging from 41

42 43 44

See 175 U.S. at 711–12; see also William S. Dodge, The Paquete Habana: Customary International Law as Part of Our Law, in International Law Stories 175, 195 (John E. Noyes, Laura A. Dickinson, & Mark W. Janis eds., 2007). 81 U.S. at 187–88. See also The Harrisburg, 119 U.S. 199, 213 (1886) (referring to “the maritime law, as accepted and received by maritime nations generally”). 157 U.S. 386, 393 (1895); see also American Ins. Co. v. Canter, 26 U.S. 511, 545–46 (1828) (holding that admiralty cases do not “arise under the Constitution or laws of the United States. . . . [but] are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our Courts to the cases as they arise”) (Marshall, C.J.).


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the “general consent of civilized nations.”45 Addressing the precise question presented by the case – whether small fishing vessels belonging to enemy nations were exempt from capture under the law of naval prize – Gray reached this conclusion: This review of the precedents and authorities on the subject appears to us abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states, that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.46

Embedded in this passage is the distinction between a rule of customary international law (based on the “general consent” of states) and an express provision of a “treaty or other public act.” And while a norm of customary international law may be “founded on considerations of humanity” and be of “mutual convenience of belligerent states,” such did not render it as mere “comity” from which states could deliberately opt out. Indeed, the crucial move in Justice Gray’s opinion in The Paquete Habana, after the exhaustive47 (and, for the reader, exhausting) review of state practice and the writings of publicists, was his conclusion that the norm against capture of small fishing boats was binding as customary international law, and, unlike the norm of enforcing foreign judgments (at issue, as we see later, in Hilton v. Guyot), was not optional. So, Justice Gray concluded, even if there was ambiguously contrary state practice from the period of the Napoleonic Wars (more on which later), the norm against capture had matured in international practice. Indeed, the prevailing metaphor in this part of the opinion was of a ripening custom: “But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law.”48 The overall impression that one can glean from the Court’s cases in this period is a decisive shift to a positivist footing for customary international law norms. Indeed, what is perhaps most surprising is the degree to which naturalist motifs for customary international law persisted in such decisions as the Prize Cases and The Lottawanna. But by the time that Justice Gray penned the duet of opinions in Hilton v. Guyot and The Paquete Habana, the unifying trope of analysis was overwhelmingly that customary international law was derived from the actual practice of nations. So the post–Civil War jurisprudence was not a mere confirmation of Chief Justice Marshall’s rhetorical victory of international law positivism in The Antelope over Justice Story’s fuzzy-headed natural law theories. Rather, and to a surprising degree, natural law visions of international law 45 46 47

48

175 U.S. at 701; see also id. at 700 (quoting Wheaton). Id. at 708. For more on Justice Gray’s stature as a legal historian, see Robert M. Spector, Legal Historian on the United States Supreme Court: Justice Horace Gray, Jr., and the Historical Method, 12 Am. J. Leg. Hist. 181 (1968). 175 U.S. at 694; see also id. at 686 (“By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.”).

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persisted, albeit in a weaker form. It was only by the end of the nineteenth century that the complete conversion to international law positivism was accomplished.

B. Comity and Customary International Law Related to, but analytically distinct from, the transition from naturalist to positivist bases of obligation in the Supreme Court’s post–Civil War customary international law jurisprudence is its treatment of comity. This line of cases deployed both natural law and positive idioms. Indeed, as the Court acknowledged,49 the very notion of comity in American law was attributable to the writings of Justice Story, who was associated with the naturalist school. Despite this ambiguity in comity’s jurisprudential origins, some general conclusions can be drawn regarding its character. In the post–Civil War cases, comity is often presented as an inchoate aspect of state sovereignty. For example, in The Sapphire,50 the issue was whether France could maintain a civil suit as a plaintiff in U.S. courts, even where the original named plaintiff (Emperor Napoleon III) was no longer in power. The Court, Justice Bradley writing, observed that [t]o deny him this privilege would manifest a want of comity and friendly feeling. . . . The Constitution expressly extends the judicial power to controversies between a State, or citizens thereof, and foreign States, citizens, or subjects, without reference to the subjectmatter of the controversy. Our own government has largely availed itself of the like privilege to bring suits in the English courts in cases growing out of our late civil war.51

In a somewhat similar vein, in The Belgenland52 the Court enunciated a doctrine akin to forum non conveniens and framed it in the argot of comity: For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction; not on the ground that it has not jurisdiction, but that, from motives of convenience, or international comity, it will use its discretion whether to exercise jurisdiction or not. . . . On general principles of comity, admiralty courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction.53

Just a few years later, Chief Justice Waite made much the same point in what has come to be known as Wildenhus’s Case.54 The issue presented in that matter was whether 49 50 51 52 53 54

See Hilton v. Guyot, 159 U.S. 113, 165 (1895); Hoyt v. Sprague, 103 U.S. 613, 631 (1881); Bank of Augusta v. Earle, 38 U.S. 519, 599 (1839) (McKinley, J., dissenting). 78 U.S. 164 (1870). Id. at 167–68. 114 U.S. 355 (1885). Id. at 363–64. Mali v. Keeper of the Common Jail, 120 U.S. 1 (1887).


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the crime of murder, committed on board a foreign-flagged vessel, where neither the perpetrator nor victim was a U.S. national, was nonetheless within the jurisdiction of U.S. courts to prosecute and punish.55 Repeatedly, the Court made reference to “the law of civilized nations.”56 The first time was to establish the rule that, at least under customary international law, foreign merchant vessels were not immunized from local jurisdiction, although they could be by treaty provision. This dual tension between a rule of customary international law (as distinct from treaty) and a norm of obligation (as opposed to comity) was fully reflected in the following observation by the Court: From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel, or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline, and all things done on board, which affected only the vessel, or those belonging to her, and did not involve the peace or dignity of the country, or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation, or the interests of its commerce should require. But, if crimes are committed on board of a character to disturb the peace and tranquility of the country to which the vessel has been brought, the offenders have never, by comity or usage, been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority. Such being the general public law on this subject, treaties and conventions have been entered into by nations having commercial intercourse, the purpose of which was to settle and define the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions.57

What is nevertheless confusing in this passage is whether “comity” is shorthand for a norm that has not risen to the level of a consistent state practice or whether it has achieved such a dignity but it is still nonetheless voluntary and nonbinding. Underlying the problem in Wildenhus are implicit questions of the extraterritorial effect of domestic laws, which, as Justice Gray noted in Huntington v. Attrill, “have no force of themselves beyond the jurisdiction of the state which enacts them, and can have extraterritorial effect only by the comity of other states.”58 55

56

57 58

See id. at 11 (“The claim of the [Belgian] consul is that, by the law of nations and the provisions of this treaty, the offense with which Wildenhus has been charged is ‘solely cognizable by the authority of the laws of the kingdom of Belgium,’ and that the state of New Jersey is without jurisdiction in the premises.”). For more background on this issue, see Symeon C. Symeonides, Cruising in American Waters: Spector, Maritime Conflicts, and Choice of Law, 37 J. Mar. L. & Com. 491, 497–99 (2006). See 120 U.S. at 11 (“It is part of the law of civilized nations that, when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless, by treaty or otherwise, the two countries have come to some different understanding or agreement.”); id. at 19 (“[W]henever the act is of a nature to compromise the tranquility of the port, or the intervention of the local authority is invoked, or the act constitutes a crime by common law, [droit commun, the law common to all civilized nations,] the gravity of which does not permit any nation to leave it unpunished, without impugning its rights of jurisdictional and territorial sovereignty.”) (interpolation added by the Court) (quoting 1 Ortolan, Diplomatie de la Mer 455, 456 (4th ed.)). Id. at 12; see also United States v. Diekelman, 92 U.S. 520, 525 (1876) (confirming that foreign vessels are normally subject to local laws on entry into a U.S. port). 146 U.S. 657, 669 (1892).

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That was precisely the question the Court returned to in Hilton v. Guyot.59 In Wildenhus’s Case it sufficed for the Court to rule that Belgium’s submission as to the content of customary international law was simply inaccurate. In Hilton, the problem for the Court was whether a foreign judgment (in the literal sense of a decree rendered by a non-U.S. tribunal) was enforceable in the United States. As a first step, Justice Gray, writing for the Court, defined the term “international law” in words that would resonate in decisions that would follow: International law, in its widest and most comprehensive sense, – including not only questions of right between nations, governed by what has been appropriately called the “law of nations,” but also questions arising under what is usually called “private international law,” or the “conflict of laws,” and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation, – is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination.60

As was clear from the balance of the opinion, Justice Gray was referring to “international law” in juxtaposition to an obligation contained in a treaty or statute: The most certain guide, no doubt, for the decision of such questions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations.61

Not only does Justice Gray seem to distinguish customary international law from treaty law, but he also notes that the proper sources and evidences of customary international law are an amalgam of publicist commentary, municipal judicial decisions, and positive “acts and usages” of states. But Hilton’s enduring influence has derived from its famous articulation of the doctrine of comity: No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call “the comity of nations.” Although the phrase has been often criticised, no satisfactory substitute has been suggested. “Comity,” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.62 59 60 61 62

159 U.S. 113 (1895). Id. at 163. Id. Id. at 163–64.


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Yet to make sense of Gray’s conception of comity, it is important to take note of his approving citation63 to Chief Justice Taney’s statement in Bank of Augusta v. Earle:64 It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. . . . The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations.65

Justice Gray’s comity jurisprudence reached its sharpest distinctions, of course, in The Paquete Habana, where he was confronted with a norm that could be declared to be customary international law or be denominated as mere “comity.” As already noted, Justice Gray assumed that when the English High Court of Admiralty rejected the application of a norm immunizing small fishing vessels from capture as “comity,” such “was apparently used by Lord Stowell as synonymous with courtesy or goodwill.”66 By ruling as he did, Justice Gray was implicitly drawing a distinction between a norm supported by sufficient state practice and opinio juris from one that was not. Hilton and The Paquete Habana can thus be read as a positivist vindication of the premises of customary international law and a requirement that the necessary elements for the formation of a customary international law norm must be satisfied before the rule will be given judicial recognition and enforcement.

C. Methodologies for Determining Customary International Law If the post–Civil War Supreme Court clarified the jurisprudential foundations of customary international law as a source of law, it also revolutionized the manner in which its content was determined. Nowhere is this more evident than in the Court’s selection of evidence in the proof of a customary international law norm and the process by which a practice or usage was validated as binding or deemed to be “mere” comity. The cases of the post–Civil War Court reveal a variety of contexts for determinations of customary international law. Some cases, as already mentioned, concerned the naval law of prize, a perfect intersection of customary international law and general maritime law.67 Other disputes concerned purely private matters of maritime law. But, during 63 64 65

66 67

Id. at 165. 38 U.S. 519 (1839). Id. at 589 (citing Joseph Story, Commentaries on the Conflict of Laws § 37 (1834)). The phrase “voluntary law of nations” recalls Vattel. See Emmerich de Vattel, The Law of Nations, Prelim. § 21; see also Chapter 1, pp. 8–9. But Vattel’s “voluntary law of nations,” based on natural law, was not in fact voluntary. See Vattel, supra, Book III, § 192 (noting with respect to voluntary law that “nations have not the option of giving or withholding their consent at pleasure” and so were “bound to consent”). This made Vattel’s voluntary law of nations quite different from comity, which both Story in his Commentaries and Taney in Bank of Augusta made clear was discretionary. 175 U.S. at 694 (quoting The Young Jacob). See Henry M. Holt, Recent Development and Tendency of the Law of Prize, 12 Yale L.J. 306 (1903).

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this period, there were a number of customary international law cases in the field of criminal jurisdiction and extradition,68 cases concerning Congress’s plenary power over immigration,69 and even original jurisdiction disputes between States of the Union (in which the Court consistently held that principles of customary international law applied to assist in interpreting treaties and the Constitution).70 From the foregoing discussion, one might assume that, as the nineteenth century wore on, the Supreme Court became more rigorously insistent that the only evidence that counted for the content of a customary international law norm was actual state practice. But this assumption would be mistaken. Even by the time of such cases as The Scotia and The Paquete Habana, the Court often invoked less concrete materials in the enunciation of international law rules. These included vague formulations of general principles, as well as heavy reliance on the writings of publicists. So, even as the rhetoric of the Court’s decisions seemed to emphasize customary international law as the empirical product of state practice, the evidence of such norms that the Court chose to cite was often not so inductive. 1. Customary International Law Derived from General Principles and Treaties: As the nineteenth century waned, the Supreme Court’s selection of sources and evidence of customary international law diversified, culminating in the highly eclectic mix of materials it used in its 1900 Paquete Habana and Panama decisions. Additionally, over time the Court became more precise in its designation of sources for determining the content of an international law norm. Occasionally, however, the Court could be vague in its treatment, referring abstractly to “general doctrines” of customary international law,71 to “general rules of international comity,”72 or, even more maddeningly, to “fundamental maxim[s] of international law,”73 without further elaboration. As described, the Court was usually quite careful in distinguishing treaty-based sources of international legal obligation from those premised in customary international law. This was clearly evident not only in Justice Gray’s opinions in Hilton74 and The Paquete Habana75 but also even earlier in the Court’s jurisprudence. Interestingly, the Court seemed to accept the notion that treaties to which the United States was not a party could nevertheless be evidence of customary international law rules binding on this country. In The Peterhoff, the question was whether customary international law countenanced “paper blockades” (those not actually enforced by naval interdiction). Chief Justice Chase cited76 a provision of the 1856 Declaration of Paris Respecting Maritime Law that banned paper blockades,77 even though the United States was not a party to it because of the 68 69 70 71 72 73 74 75 76 77

See, e.g., Sprott v. United States, 87 U.S. 459 (1874); United States v. Rauscher, 119 U.S. 407 (1886); Wildenhus’s Case, 120 U.S. 1 (1887); United States v. Rodgers, 150 U.S. 249 (1893). See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898). See, e.g., New Hampshire v. Louisiana, 108 U.S. 76 (1883); Iowa v. Illinois, 147 U.S. 1 (1893). The Peterhoff, 72 U.S. 28, 56 (1866). Huntington v. Attrill, 146 U.S. 657, 669 (1892). Id. at 666 (citing The Antelope, 23 U.S. 66, 123 (1825) (Marshall, C.J.)). See 159 U.S. 113, 163 (1895). See 175 U.S. 677, 708 (1900). 72 U.S. at 50. Declaration of Paris art. 4, Apr. 16, 1856, 115 Consol. T.S. 1, 15 Martens Nouveau Recueil (ser. 1) 791, reprinted in 1 Am. J. Int’l L. Supp. 89 (1907) (“Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”).


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treaty’s abolition of privateering, and the executive branch had not indicated adherence to its rules.78 Later, after the United States did proclaim its acceptance of the rules contained in the Paris Declaration, the status of blockades remained a significant issue. In The Adula79 the Supreme Court upheld the condemnation of a vessel as prize even when the master of the ship had not been given sufficient notice of a blockade. The vessel owner relied on the 1856 Paris Declaration as evidence of a customary international law rule against unannounced (as opposed to constructive) blockades.80 The majority, without much explanation, rejected this argument, but the dissent, by Justice George Shiras, relied81 on Chief Justice Marshall’s statement in Fitzsimmons v. Newport Ins. Co. that “[t]his treaty [between the United States and Britain] is conceived to be a correct exposition of the law of nations; certainly it is admitted by the parties to it, as between themselves, to be a correct exposition of that law, or to constitute a rule in the place of it.”82 So there appears to be a substantial basis for inferring from the Court’s post–Civil War jurisprudence that customary international law rules could be derived from treaty provisions, even those that the United States had not expressly adhered to. The Court also seemed disposed, by analogy, to derive provisions of customary international law from analogous provisions of treaties between the United States and third parties. This move occurred both in Wildenhus’s Case and The Paquete Habana.83 But at no time in the post–Civil War period did the Court go so far as to derive customary international law rules from treaty provisions that had been affirmatively repudiated by the United States. 2. Customary International Law Gleaned from Publicists’ Writings: In the period 1861– 1900, far and away the most common evidence cited by the Supreme Court for the content of customary international law or general maritime law was the writing of international law scholars or “publicists.”84 On most occasions, such citations are fairly uncritical, without further explanation of the weight to be given them. Moreover, the Justices were often vague as to whether the authority they cited was useful because it asserted that a norm existed or because it actually collected evidence of state practice.85 Occasionally, a 78

79 80 81 82 83

84 85

The United States favored the abolition of privateering, yet it never signed the Paris Declaration. Professor Verzijl opines that this was owing to the refusal of the Great Powers to abolish other forms of maritime captures. See 11 Jan Verzijl, International Law in Historical Perspective: The Law of Maritime Prize 170 (1992). An alternative explanation is that the constitutional provision contained in Article I, Section 8, Clause 11, gave Congress the power to “grant Letters of Marque and Reprisal,” and there was concern that adopting the Declaration would constitute a treaty-based amendment of the Constitution. But see Proclamation of April 26, 1898, 30 Stat. 1770, 1771 (“the policy of this government will not be to resort to privateering, but to adhere to the rules of the Declaration of Paris”) (1898). 176 U.S. 361 (1900). Id. at 370–71. Id. at 390–91 (Shiras, J., dissenting). 8 U.S. 185, 199 (1808). See, e.g., Wildenhus’s Case, 120 U.S. 1, 14–16 (1887) (canvassing a large number of treaties between the United States and nations other than Belgium, the country at issue in the case); The Paquete Habana, 175 U.S. 677, 690–91 (1900) (referencing 1785 treaty between Prussia and the United States). United States v. Rauscher, 119 U.S. 407, 411, 419 (1886). See, e.g., The Prize Cases, 67 U.S. 635, 667 (1863) (citing Vattel); id. at 687 (Nelson, J., dissenting) (citing Kent); The Peterhoff, 72 U.S. 28, 58 n.32 (1867) (citing various versions of Wheaton and Parson); The Florida, 101 U.S. 37, 42 (1880) (citing Grotius); United States v. Rodgers, 150

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Justice editorialized as to the stature of the publicist cited, as with Justice Stephen Field’s paean to various writers in Sprott v. United States.86 Justice Samuel Miller, writing for the Court in United States v. Rauscher, articulated the notion that “publicists and writers on international law” were to be respected as “specialists on that subject.”87 To its immense credit, when the post–Civil War Court cited international law publicists, it showed little favoritism to American giants, such as Kent, Story, Wheaton, and Halleck, although they were certainly well represented in citations. Of English writers, Phillimore, Lawrence, and Twiss earned substantial mention in the reported decisions. It is possible to discern a slight bias in favor of publicists writing in English, but members of the Court seemed comfortable citing French, Spanish, and Italian sources (through competent English versions), occasionally rendering their own translations. The Court did have occasion to opine on its reliance on writers on general maritime law. In The Maggie Hammond, Justice Clifford made this comment: [I]n all the discussions respecting the [maritime law] in the courts . . . the continental collections and treatises on the subject are received as authority by their judges where no[t] unfitted for adoption there by any peculiarity which their practice does not recognize. Reference is then made to the principal continental treatises, usually referred to here, and frequently recognized by this court as the sources from which the rules of the maritime law were drawn.88

In general maritime law cases, the Court routinely cited not only publicists of the maritime law (showing especial favor to French writers)89 but also the historic compilations of maritime laws and practices of antiquity (including the Rhodian sea law90 ) and the

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U.S. 249, 280 (1893) (citing Azuni’s treatise in Italian, and Valin’s in French, as well as Vattel and Kent); New Hampshire v. Louisiana, 108 U.S. 76, 90 (1883) (citing Phillimore); Wong Kim Ark, 169 U.S. 649, 708 (1898) (Harlan, J., dissenting) (citing Twiss); Wildenhus’s Case, 120 U.S. at 11– 12, 19 (citing Phillimore, Twiss, Creasy, Halleck, and Ortolan); Iowa v. Illinois, 147 U.S. 1, 8–10 (1893) (citing Wheaton, Creasy, Halleck, Woolsey, and Phillimore); Hilton, 159 U.S. 113, 163–64, 214–15 (1895) (citing Story, Kent, Wheaton, Foelix, Moreau, Constant, and Westlake); The Adula, 176 U.S. 361, 366, 370, 382 (1900) (citing Halleck, Phillimore, and a French treatise by Pistoye and Duverdy). 87 U.S. 459, 471 (1874) (Field, J., dissenting) (“I place it on higher ground, one which is recognized by all writers on international law, from Grotius, its father, to Wheaton and Phillimore, its latest expounders.”); see also id. at 468 (Field, J., dissenting) (Wheaton “who is recognized as authority on all questions of public law”); Rauscher, 119 U.S. at 416–17 (citing William Beach Lawrence as “a very learned authority on matters of international law, living in this country”). Rauscher, 119 U.S. at 411. 76 U.S. 435, 452 (1870); see also The Lottawanna, 88 U.S. 558, 576 (1874) (“To ascertain, therefore, what the maritime law of this country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed; but we must have regard to our own legal history, constitution, legislation, usages, and adjudications as well.”). E.g., New England Mut. Marine Ins. Co. v. Dunham, 78 U.S. 1, 34 (1871) (citing Roccus); The Scotland, 105 U.S. 24, 28 (1882) (citing Emerigon’s treatise); Place v. Norwich & N.Y. Transp. Co., 118 U.S. 468, 495 (1886) (citing the French treatises of Valin, Emerigon, Pardessus, Boulay-Paty, Dufour, and Bedarride); Robertson v. Baldwin, 165 U.S. 275, 285 (1897) (citing Malynes’s and Molloy’s treatises). Robertson, 165 U.S. at 283, 293; Ralli v. Troop, 157 U.S. 386, 394, 396 (1895); The Scotia, 81 U.S. 170, 187–88 (1872) (“The Rhodian law is supposed to have been the earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations.”); Dunham, 78 U.S. at 32.


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maritime codes of the Middle Ages, including those of Oleron and of Louis XIV of France.91 By the time of the prize cases arising from the Spanish-American War, members of the Court had become much more sophisticated – and circumspect – in their handling of publicists’ writings. In The Adula, Justice Henry Brown, writing for the Court, made a handful of citations to such treatises as Halleck and Phillimore,92 but went out of his way to reject the novel views contained in a French treatise: [W]e are cited by counsel for the Adula to a change in the law said to have been effected by the adhesion of this government, at the beginning of the war, to the declaration of Paris abolishing privateering. This supposed change apparently rests upon an extract from a French treatise upon international law by Pistoye and Duverdy, vol. 1, p. 375, in which it is said that by the modern law, in consequence of the declaration of Paris, a vessel must be notified to depart from the blockaded port before she can be captured, and that the contrary rule was the result of the doctrine of the British Orders in Council during the Napoleonic wars, which is now given up by that country. . . . We cannot, however, accept this opinion as overruling in any particular the prior decisions of this court in the cases above cited, to the effect that a departure for a blockaded port with intent to violate the blockade renders the vessel liable to seizure. When Congress has spoken upon this subject it will be time enough for this court to act. We cannot change our rulings to conform to the opinions of foreign writers as to what they suppose to be the existing law upon the subject.93

It is no surprise then that by the time the Court was compelled, in The Paquete Habana, to consider a truly contested matter of customary international law – whether small fishing vessels were immune from capture – the Court divided as to reliance on the authority of publicists. Justice Gray’s majority opinion has been justly revered as a tribute to international law scholarship.94 By a conservative count, he cited the work of no less than thirty-three writers, whose nationalities included the United States, Great Britain, France, The Netherlands, Austria, Germany, Spain, Portugal, Italy, Argentina, Russia, and Japan.95 Justice Gray was able to assemble, from this set of sources, proof of what he viewed as a consensus of views on the immunity from capture of fishing vessels. But what legitimated the Court’s recourse to the writings of publicists? One answer Justice Gray provided was that the Court had previously relied on such evidence.96 Rather 91

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E.g., Dunham, 78 U.S. at 33–34 (citing Pardessus’s collection of ordinances from Barcelona (1435), Venice (1468), Florence (1523), Antwerp (1537), France (1681), and the Consolato del Mare); The Scotland, 105 U.S. at 28 (citing the 1681 Ordinance of Louis XIV); Place, 118 U.S. at 495 (same); Robertson, 165 U.S. at 283 (citing laws of Oleron, Wisbuy, the Hansaetic League, and the Consolato). 176 U.S. 361, 366 (1900); see also The Panama, 176 U.S. 535, 542, 546 (1900) (citing Wheaton, Dana, Calvo, De Boeck, and Pratt and noting that “writers on international law concur in affirming that no provision for the immunity of mail ships from capture has as yet been adopted by such a general consent of civilized nations as to constitute a rule of international law”). The Adula, 176 U.S. at 370–71. See Dodge, supra note 41, at 192–94, 197. 175 U.S. at 686 (Ortolan, Calvo, De Boeck, Hall), 688–89 (Bynkershoek, Cleriac, Pardessus, Valin), 691 (Wheaton, Kent, Dana, de Cussy, Massé), 692–93 (Martens, Schoell, Manning), 694–95 (Mackintosh, Merlin, Pistoye, Duverdy), 698 (Halleck), 699–700 (Katchenovksy, Takahasi), 704 (Heffter, Kalterborn, Bluntschli, Perels), 706–07 (T.J. Lawrence, Ferguson, Attlamayr, Megrin, Testa, Fiore). 175 U.S. at 700 (citing Hilton v. Guyot, 159 U.S. 113, 163–64, 214–15 (1895)).

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less persuasively, he noted that publicists of international law had asserted that their own writings could constitute evidence of customary international law.97 Ultimately, Justice Gray concluded that as evidence of the [customs and usages of civilized nations, resort must be had] to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.98

It is important to realize, however, that Justice Gray’s encomium for the virtues of publicists – provided they were largely in agreement on the same topic – may not have been widely shared by his colleagues on the Court. In The Paquete Habana dissent, penned by Chief Justice Fuller (joined by Justices John Marshall Harlan and Joseph McKenna), there was this none-too-subtle aside: It is needless to review the speculations and repetitions of the writers on international law. Ortolan, De Boeck, and others admit that the custom relied on as consecrating the immunity is not so general as to create an absolute international rule; Heffter, Calvo, and others are to the contrary. Their lucubrations may be persuasive, but not authoritative.99

In that eternal battle between judges and professors, the judges always seem to get the last word, and Chief Justice Fuller’s views seem to resonate with statements – both earlier and later – on the relative weight to be accorded to international law publicists.100 97

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Id. at 700–01 (“Wheaton places among the principal sources international law ‘text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.’ As to these he forcibly observes: ‘Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.’”); id. at 701 (“Chancellor Kent says: ‘In the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law.’”). Id. at 700. Id. at 720 (Fuller, C.J., dissenting). See, e.g., The Renard, 165 Eng. Rep. 51 (Adm. 1778) (U.K.) (“[T]here was something ridiculous in the decisive way each lawyer, as quoted, had given his opinion . . . A pedantic man in the closet dictates the law of nations; everybody quotes, nobody minds him. . . . [A]nd who shall decide, when doctors [publicists] disagree?”); United States v. Yousef, 327 F.3d 56, 102 & n.35 (2d Cir. 2003) (“This notion – that professors of international law enjoy a special competence to prescribe the nature of customary international law wholly unmoored from legitimating territorial or national responsibilities, the interests and practices of States, or (in countries such as ours) the processes of democratic consent – may not be unique, but it is certainly without merit. . . . The claim of scholars to speak for ‘the international community,’ loosely so called, however commonplace in our time, should be regarded with skepticism. . . . Put simply, and despite protestations to the contrary by some scholars (or ‘publicists’ or ‘jurists’), a statement by the most highly qualified scholars that international law is x cannot trump evidence that the treaty practice or customary practices of States is otherwise, much less trump a statute or constitutional provision of the United States at variance with x. This is only to emphasize the point that scholars do not make law,


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3. Actual State Practice: With the exception of one set of materials, notably absent in the post–Civil War Supreme Court’s handling of customary international law is any direct evidence of the actual practice of states. The Court made obliging noises that a norm of customary international law had to be supported by “common consent”101 or the “general consent of nations.”102 Occasionally, the Court referred to the “usages of European nations” in divining the content of customary international law norms,103 but with exceedingly few references to the raw material of such state practice, including diplomatic notes, executive or military orders, and the decisions of international assemblies or conferences.104 As has been noted,105 it was only by the close of the nineteenth century that digests or compilations of state practice were becoming commonly available, apart from the treatises prepared by publicists. In the United States, the Digests prepared by Francis Wharton (first published in 1887) and John Bassett Moore (first published in 1906)106 were among the first of their kind, as were the periodic compilations of diplomatic correspondence published as Foreign Relations of the United States (beginning in 1861). Likewise, Justice Gray’s reliance in The Paquete Habana on executive orders and proclamations (not only from the United States but also from other powers),107 as well as his detailed treatment of the practices of belligerents during the Napoleonic Wars, the Mexican War, and the Crimean War,108 was virtually unprecedented and heralded a new, “scientific” approach to positively determining the content of customary international law norms.109 As already hinted, however, it is not entirely true that The Paquete Habana marked a revolution in methodology for actual state practice. The Supreme Court had traditionally examined the decisions of foreign tribunals as evidence of customary international law, and this practice intensified in the post–Civil War years. Additionally, the Court increasingly cited to foreign statutory or code provisions, if they were supposedly declaratory of a customary international law rule.110 The Court referred to foreign judicial decisions not only in prize cases (more on which presently) but also in general maritime law cases that raised purely private international law matters. For example, in The Belgenland,

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and that it would be profoundly inconsistent with the law-making processes within and between States for courts to permit scholars to do so by relying upon their statements, standing alone, as sources of international law.”) The Prize Cases, 67 U.S. 635, 670 (1863). The Paquete Habana, 175 U.S. 677, 701 (1900). See Iowa v. Illinois, 147 U.S. 1, 8, 10 (1893) (referring to the thalweg rule of delimiting a river boundary by the deepest channel). But see The Prize Cases, 67 U.S. at 670 (referring to diplomatic correspondence with Great Britain); United States v. Rauscher, 119 U.S. 407, 416, 435 (1886) (citations to volumes of the Foreign Relations of the United States); The Adula, 176 U.S. 361, 371 (1900) (referring to British Orders in Council from the Napoleonic Wars); The Paquete Habana, 175 U.S. at 700, 719. See Dodge, supra note 41, at 193; Edwin D. Dickinson, Changing Concepts and the Doctrine of Incorporation, 26 Am. J. Int’l L. 239, 242 (1932). See also Janis, supra note 9, at 122–24. 175 U.S. at 687 (England), 688 (France and Prussia), 700 (Japan). Id. at 691–700. In a similar vein, the Court began to receive in briefing more evidence of socially relevant empirical data. See Chapter 8, pp. 272–73 (describing the emergence of the “Brandeis Brief” and its connection with social transformations in America at the turn of the twentieth century). Place v. Norwich & N.Y. Transp. Co., 118 U.S. 468, 501–02 (1886) (citing 1681 French and 1794 Prussian Codes); Robertson v. Baldwin, 165 U.S. 275, 285–86 (1897) (citing commercial codes of France, Germany, The Netherlands, and Argentina, as well as British statutes of 1729, 1791, 1854, and 1894).

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the Court proclaimed that “salvage is a question of jus gentium”111 and cited a number of English High Court of Admiralty decisions, rendered on the “instance” side of that tribunal’s jurisdiction.112 On occasion, however, the Supreme Court referred to English admiralty decisions as evidence of a lex specialis unique to that country and as contrary to proof of a general maritime law.113 Another set of customary international law cases in which foreign judicial decisions were reviewed involved criminal matters. In United States v. Rauscher, the question was whether extradition could be ordered otherwise than in accordance with the terms of a treaty; put another way, was there a customary international law obligation to extradite? The Court had recourse “to the courts and judicial tribunals of different countries,”114 although the only evidence of foreign state practice was provided by references to British incidents as narrated through a manual published in England.115 A somewhat more extensive review of English decisions occurred in Wildenhus’s Case in 1887.116 Even more interestingly, Chief Justice Waite in that opinion was obliged to distinguish the decisions of the French Conseil d’Etat, as reported in Wheaton’s and Phillimore’s treatises, which superficially appeared to contradict the Court’s rulings that offenses committed on board a foreign vessel, affecting the peace of the port, were properly within the jurisdiction of local tribunals.117 References to the decisions of the English High Court of Admiralty, sitting in prize, were a staple of the Marshall Court,118 and this was also true for the latenineteenth-century Court considering prize cases arising from the Civil War119 and Spanish-American War.120 In no fewer than three cases decided by the post–Civil War Supreme Court, a major feature of the methodology for divining the content of a customary international law norm was distinguishing a previous decision rendered by a foreign tribunal. It was in this context that norms of customary international law were quite demonstrably reconciled with particular evidence of state practice. For example, in The Peterhoff the question was whether a blockade could be extended by construction, such as to cover a destination situated on an international boundary (in this case, the 111 112 113

114 115 116

117 118

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114 U.S. 355, 362 (1885). Id. at 362–69 (citing a number of English admiralty decisions). E.g., Liverpool & G.W. Steam Co. v. Phenix Ins. Co, 129 U.S. 397, 443–44 (1889) (“There is not shown to be any such general maritime law. The industry of the learned counsel for the appellant has collected articles of codes, decisions of courts, and opinion of commentators in France, Italy, Germany, and Holland, tending to show that, by the law administered in those countries, such a stipulation would be valid. But those decisions and opinions do not appear to have been based on general maritime law, but largely, if not wholly, upon provisions or omissions in the codes of the particular country.”). United States v. Rauscher, 119 U.S. 407, 411 (1886). Id. at 417 (citing Clarke on extradition). 120 U.S. at 12 (“And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship.”) (citing Regina v. Cunningham, Regina v. Anderson, and Regina v. Keyn). Id. at 13–14 (describing The Sally and The Newton incidents). For Marshall’s appreciation of Judge Scott (later Lord Stowell), see The Venus, 12 U.S. 253, 299 (1814) (“I respect Sir William Scott, as I do every truely great man; and I respect his decision; nor should I depart from them on light grounds: but it is impossible to consider [Scott’s prize decisions] attentively without perceiving that his mind leans strongly in favor of the captors.”). E.g., The Prize Cases, 67 U.S. 635, 668 (1863) (citing a single decision by Lord Stowell concerning declared wars). E.g., The Adula, 176 U.S. 361, 367, 369–70 (1900) (citing a number of English High Court of Admiralty decisions on the distinction between proclaimed and actual blockades).


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mouth of the Rio Grande). Chief Justice Chase first noted that “[w]e know of no judicial precedent for extending a blockade by construction. But there are precedents of great authority the other way.”121 After reviewing these precedents, Chase observed that “we are not aware of any instance in which a belligerent has attempted to blockade the mouth of a river or harbor occupied on one side by neutrals, or in which such a blockade has been recognized as valid by any court administering the law of nations.”122 Counsel for the captors (representing the government) cited four decisions of Sir William Scott (from 1799, 1801, and 1805), but the Court distinguished each on geographical or historical grounds,123 concluding that “[t]hese cases fully recognize the lawfulness of neutral trade to or from a blockaded country by inland navigation or transportation,”124 and thus holding the capture of The Peterhoff unlawful. It seems a consistent theme of the Supreme Court’s customary international law jurisprudence of this period that it was obliged to distinguish troublesome cases from other jurisdictions, reflecting contrary views of state practice. The Panama was decided a few weeks after its more famous counterpart, The Paquete Habana, and in many respects was its evil twin. In The Panama, the question was whether a mail steamer carrying defensive armament could be subject to capture. After rejecting the notion that the vessel was immune simply by its status as a mail ship,125 Justice Gray, writing for the Court, also dismissed the claim that the ship could not be made a prize because its armament was purely defensive. To make this ruling, Justice Gray had to distinguish an 1800 decision of the French Council of Prizes.126 He did so in fairly factual terms.127 Justice Gray’s similar move in The Paquete Habana was, of course, far more controversial. There, the challenge was to distinguish the one piece of evidence contradicting the Court’s finding of a binding state practice that small fishing vessels were immune from capture. That piece of evidence was Sir William Scott’s 1798 decision in The Young Jacob and Johanna, “much relied upon by the counsel for the United States, and deserv[ing of] careful consideration.”128 Scott’s decision was pursuant to a January 24, 1798, British Order in Council, issued at the start of the Napoleonic Wars, that French and Dutch fishing boats were liable to capture. In The Young Jacob, Judge Scott noted that his government’s earlier forbearance in immunizing fishing vessels from capture was “a rule of comity only, and not of legal decision.”129 There really was no effective way

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72 U.S. 28, 52 (1867) (citing The Frau Ilsabe). Id. Id. at 53–55 (distinguishing The Maria, The Stert, The Ocean, and The Jonge Pieter). Id. at 56. 176 U.S. 535, 541–43 (1900). Id. at 543–44 (discussing The Pégou). Id. at 544–45 (“But in that case the only question at issue was whether a neutral merchant vessel, carrying arms solely for her own defense, was liable to capture for want of a commission as a vessel of war or privateer. That the capture took place while there was no state of war between France and the United States is shown by her being treated, throughout the case, as a neutral vessel; if she had been enemy’s property, she would have been lawful prize, even if she had a commission, or if she were unarmed. She was not enemy’s property, nor in the enemy’s possession, nor bound to a port of the enemy; nor had her owner made any contract with the enemy by which the enemy was, or would be, under any circumstances, entitled to take and use her, either for war, or for any other purpose.”). 175 U.S. 677, 693 (1900). 175 U.S. at 694 (quoting The Young Jacob and Johanna, 165 Eng. Rep. 81 (Adm. 1798)).

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for Gray to distinguish The Young Jacob on its facts,130 so he relegated it to the realm of anachronism: Assuming the phrase “legal decision” to have been there used, in the sense in which courts are accustomed to use it, as equivalent to “judicial decision,” it is true that, so far as appears, there had been no such decision on the point in England. The word “comity” was apparently used by Lord Stowell as synonymous with courtesy or goodwill. But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law.131

It was precisely this move that was challenged by The Paquete Habana dissenters132 and by subsequent scholars.133 As is evident from this discussion, the marks of distinction for the Supreme Court’s post–Civil War customary international law jurisprudence are its growing discernment in the use of materials for state practice and its sophisticated methodology for determining the true “bindingness” of a reputed customary international law norm. Neither of these elements of international law “technique” would have been evident in the Court’s earlier decisions, even from the Marshall Court. But it would be a profound mistake to assume this was a revolution exclusively of Justice Gray’s making, the product of the eccentricities of a single Justice. Rather, the Court’s growing understanding of the nature and function of customary international law is evident from the trajectory of cases decided during this period. Just as important, it is evident that while the post–Civil War Court’s customary international law rhetoric emphasized international law positivism, the citations it deployed to prove such norms were not always inductive of actual state practice.

II. Customary International Law as “Part of our Law” After this lengthy exposition on the post–Civil War Supreme Court’s understanding of the nature and function of customary international law, it remains to determine how the Court came to its famous conclusion in The Paquete Habana that “international law is part of our law.”134 As many scholars have observed,135 there was nothing new in this declaration. Indeed, Justice Gray cribbed from his own earlier opinion in Hilton v. Guyot, where he wrote that “[i]nternational law, in its widest and most comprehensive sense . . . is 130

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See 175 U.S. at 693–94. The fishing boats in The Young Jacob were unquestionably enemy in character. Besides, Sir William Scott strongly suspected they were carrying fraudulent papers. See 165 Eng. Rep. at 82. 175 U.S. at 694. Id. at 719 (Fuller, C. J., dissenting). E.g., Jack L. Goldsmith & Eric A. Posner, Understanding the Resemblance between Modern and Traditional Customary International Law, 40 Va. J. Int’l L. 639, 648–50 (2000); Roger Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675, 746–50 (2003); Ronald S. McClain, The Coastal Fishing Exemption from Capture and Targeting: An Example and Analysis of the Origin and Evolution of Customary International Law, 45 Naval L. Rev. 77, 97–98 (1998). But see David J. Bederman, The Feigned Demise of Prize, 9 Emory Int’l L. Rev. 31, 67–69 (1995); Dodge, supra note 41, at 196–97. 175 U.S. at 700. E.g., Dodge, supra note 41, at 175, 190.


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part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination.”136 It is beyond the scope of this chapter to trace the intellectual origins of Justice Gray’s declaration to its locus classicus. Rather, my objective here is to situate the holdings in Hilton and The Paquete Habana in the customary international law decisions of the Supreme Court after 1861. Particularly relevant in this regard is how the post–Civil War Supreme Court conceived the general maritime law’s applicability in U.S. law.

A. Judicial Notice of Customary International Law One place to begin this analysis is with how judges were supposed to receive and apply evidence of a customary international law norm in cases where it “must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”137 The Court had previously answered this question in the 1872 case The Scotia, addressing the negligence of a foreign-flagged vessel in not displaying the proper collision-avoidance lights. In examining foreign statutory enactments as part of its determination of the content of a general maritime law norm, the Court made clear that [t]his is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact that by common consent of mankind, these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign municipal laws must indeed by proved as facts, but it is not so with the law of nations.138

Not only does this statement confirm the Court’s treatment of general maritime law as a form of customary international law, but it also makes clear that the law of nations is not to be proven as fact in U.S. judicial proceedings. As part of the law of the United States it is instead subject to judicial notice.139 Justice Gray approvingly quoted this passage from The Scotia in The Paquete Habana,140 and it also helps explain his comment that “[t]his rule of international law [immunizing fishing vessels from capture] is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.”141 Of course, whether a court should take judicial notice of a rule of customary international law begs the question whether “questions of right depending upon it”142 are truly at issue. Viewing customary international law as something subject to judicial notice does not really resolve its status as “part of [United States] law.” 136 137 138 139 140 141 142

159 U.S. 113, 163 (1895). The Paquete Habana, 175 U.S. at 700. 81 U.S. 170, 188 (1872). See Brown v. Piper, 91 U.S. 37, 42 (1875) (“Among the things of which judicial notice is taken are the law of nations; the general customs and usages of merchants.”). 175 U.S. at 711–12. Id. at 708. Id. at 700.

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B. Customary International Law as General Law The far more fundamental question is where customary international law is situated in the matrix of the U.S. constitutional order. Justice Gray, of course, made clear that customary international law was subordinate to any “treaty [or] controlling executive or legislative act or judicial decision.”143 Leaving aside the question of the President’s authority to unilaterally violate customary international law (discussed later in this section), that subordinate status raises questions of the reception of norms of customary international law and general maritime law and the extent to which they can be altered by Congress or by state laws. How the United States received these norms was not just a matter of theoretical or antiquarian interest for members of the Supreme Court of this period. Customary international law’s status as some form of “general law” is a direct legacy of Justice Story’s 1842 opinion in Swift v. Tyson and its recognition of a “general commercial law” coextensive with the entire nation, if not the entire civilized world.144 But it would be a profound mistake to assume that the late-nineteenth-century Court was consistent in its treatment of customary international law as some species of general law. Justice Swayne, writing for the Court in The Siren, one of the last prize cases from the Civil War period, offered this fairly narrow account: While the American colonies were a part of the British empire, the English maritime law, including the law of prize, was the maritime law of this country. From the close of the Revolution down to this time it has continued to be our law, so far as it is adapted to the altered circumstances and condition of the country, and has not been modified by the proper national authorities.145

By contrast, Justice Bradley offered this broader vision of reception in The Lottawanna: That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend “to all cases of admiralty and maritime jurisdiction.” But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it. It does not declare whether it was intended to embrace the entire maritime law as expounded in the treatises, or only the limited and restricted system which was received in England, or lastly, such modification of both of these as was accepted and recognized as law in this country.146

But whether general maritime law was received from exclusively English sources or was also derived from the larger lex mercatoria of maritime nations, it was still subject to adoption by U.S. legal institutions – whether by recognition through the decisions of U.S. courts or by affirmative codification or alteration by an act of Congress. Indeed, the post–Civil War cases on the reception of customary international law seem to treat 143 144

145 146

Id. 41 U.S. 1, 18–19 (1842). For more on the early-nineteenth-century view of general law, see Chapter 1, pp. 27–32; William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513 (1984). 80 U.S. 389, 392–93 (1871) (citing Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815)). 88 U.S. at 574.


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with equanimity the possibility that it could be either judicially recognized or statutorily codified. In short, Justice Bradley’s opinion subtly modified the position articulated by the Marshall Court.147 The Lottawanna is the opening salute for a new position on the reception of customary international law into U.S. domestic law. In this respect, Justice Bradley’s opinion in The Lottawanna would exercise a profound impact on the subsequent course of cases involving customary international law and general maritime law in this country. He wrote emphatically that it is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. In this respect it is like international law or the laws of war, which have the effect of law in no country any further than they are accepted and received as such; or, like the case of the civil law, which forms the basis of most European laws, but which has the force of law in each state only so far as it is adopted therein, and with such modifications as are deemed expedient. . . . Perhaps the maritime law is more uniformly followed by commercial nations than the civil and common laws are by those who use them. But, like those laws, however fixed, definite, and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. . . . Each state adopts the maritime law, not as a code having any independent or inherent force, proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption it would not be law. And thus it happens, that, from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common, comes to be the common maritime law of the world.148

Significantly, in this passage Justice Bradley equated customary international law and general maritime law inasmuch as each was required to be adopted into U.S. law and could be modified by U.S. legal institutions. The Lottawanna’s formulation was accepted by every other Justice on the Court of this period to consider the question, including Justice Gray. This acceptance extended to disputes in both public and private international law contexts and irrespective of whether the custom or usage to be adopted was that of states or of private actors.149 If general maritime law – and by implication, customary international law – must be “adopted . . . and qualified” as part of our law, that leads to the necessary conclusion 147 148 149

See, e.g., The Nereide, 13 U.S. 388, 423 (1815) (“Till such an act [of Congress] be passed, the Court is bound by the law of nations which is a part of the law of the land.”). 88 U.S. at 572–73; see also American Ins. Co. v. Canter, 26 U.S. 511, 545–46 (1828) (holding that admiralty cases do not “arise under the Constitution or laws of the United States”). E.g., N.Y. Life Ins. Co. v. Hendren, 92 U.S. 286, 287–88 (1876) (Bradley, J., dissenting) (“[I]nternational law has the force of law in our courts, because it is adopted and used by the United States. It could have no force but for that, and may be modified as the government sees fit. Of course, the government would not attempt to modify it in matters affecting other nations, except by treaty stipulations with them.”); Liverpool & G.W. Steam Co. v. Phenix Ins. Co, 129 U.S. 397, 444 (1889) (Gray, J.) (“The general maritime law is in force in this country, or in any other, so far only as it has been adopted by the laws or usages thereof.”); The Elfrida, 172 U.S. 186, 203 (1898) (“the maritime usages of foreign countries are not obligatory upon us, and will not be respected as authority, except so far as they are consonant with the well-settled principles of English and American jurisprudence” (citing The John G. Stevens, 170 U. S. 113, 126 (1898)).

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that Congress can alter it. This, too, was made clear in Justice Bradley’s opinion in The Lottawanna: But we must always remember that the court cannot make the law, it can only declare it. If, within its proper scope, any change is desired in its rules, other than those of procedure, it must be made by the legislative department. It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.150

Or, as Justice Bradley also wrote in a later opinion, “whilst the rule [of shipowner limitation of liability] adopted by Congress is the same as the rule of the general maritime law, its efficacy as a rule depends upon the statute, and not upon any inherent force of the maritime law.”151 As already suggested, the implications of these holdings far transcended problems of delimiting the outward boundaries of federal courts’ admiralty jurisdiction or the substantive content of general maritime law. Rather, they went to the heart of applying any international law norm (not otherwise codified in a statute or treaty), whether in the realms of public or private international law, as seen in The Paquete Habana or in Hilton v. Guyot. Indeed, these holdings reached back farther to a debate begun by Justice Story as to any potential international law limits on Congress’s plenary powers to determine questions of U.S. citizenship and the consequences thereof. In Shanks v. Dupont,152 he wrote that “[t]hose political rights [of citizenship] do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.”153 But in Wong Kim Ark, Justice Gray effectively repudiated this position,154 upholding the notion that Congress was at complete liberty to alter the contours of international law norms, as embodied both in treaties155 and in customary international law.156 150 151

152 153 154

155

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88 U.S. at 576–77. The Scotland, 105 U.S. 24, 29 (1882); see also Place v. Norwich & N.Y. Transp. Co., 118 U.S. 468, 495 (1886) (“If the rule of the maritime law is different, the statute must prevail.”); Butler v. Boston & Savannah S.S. Co., 130 U.S. 527, 555–56 (1889) (“These quotations are believed to express the general, if not unanimous, views of the members of this court for nearly 20 years past, and they leave us in no doubt that, while the general maritime law, with slight modifications, is accepted as law in this country, it is subject to such amendments as congress may see fit to adopt.”). 28 U.S. 242 (1830). Id. at 248. United States v. Wong Kim Ark, 169 U.S. 649, 660 (1898) (“This last sentence was relied on by the counsel for the United States, as showing that the question whether a person is a citizen of a particular country is to be determined, not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States.”). Cf. id. at 708 (Harlan, J., dissenting). See also The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Detlev F. Vagts, The United States and Its Treaties: Observance and Breach, 95 Am. J. Int’l L. 313, 313–18 (2001); G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1, 28–29 (1999). See William S. Dodge, Customary International Law, Congress, and the Courts: Origins of the Laterin-Time Rule, in Making Transnational Law Work in the Global Economy: Essays in Honor of Detlev Vagts 531 (2010). But see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 874–78 (1987) (challenging the application of the later-in-time rule to statutory overrides of customary international law).


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So, when The Paquete Habana’s mantra that “international law is part of our law” is read against the backdrop of the Court’s prior decisions, what Justice Gray really meant was that customary international law could be judicially noticed as a rule of decision, on proper proof of the usage (whether as state practice or the lex maritima), provided that the norm had been “adopted” into U.S. law. At a minimum, an ostensible customary international law norm could not be “qualified” into the law of the United States if (after the proper application of the Charming Betsy canon157 ) it directly contradicted a treaty obligation or an act of Congress. Justice Gray and his contemporaries on the Court never expressly stated whether more was required to “adopt” and “qualify” a norm of customary international law or general maritime law into U.S. law, and this aspect of dualism remains an enduring problem for our law of foreign relations.

C. Customary International Law, Federal Jurisdiction, and State Law Likewise, the post–Civil War Court was ambiguous in answering the question whether norms of customary international law or general maritime law were federal law for purposes of the Constitution’s Article III (conveying federal jurisdiction) or Article VI (preempting state law).158 Without wading too far into this debate, suffice it to say here that three cases that have become the chief exhibits in support of the proposition that customary international law is not properly regarded as a species of federal law159 originate from the period under review here: New York Life Insurance Co. v. Hendren,160 Ker v. Illinois,161 and Huntington v. Attrill.162 In Hendren, the problem was whether a state court decision upholding a beneficiary’s demand that she be paid on a life insurance policy presented a sufficient federal question to allow U.S. Supreme Court review. Stated in this way, as the majority of the Court did,163 the answer was obviously “no.” But the complication was that the insured under the life policy was a resident of a State in rebellion against the United States, and the insurance company refused to pay on grounds that to do so would violate international law norms against nonintercourse of belligerents. The majority, Chief Justice Waite writing, still declined jurisdiction and distinguished this case from others where a federal question was based on the “constitution, laws, treaties, or executive proclamations, of the United States.”164 Waite implied that inasmuch as the insurance company was relying exclusively on a customary international law norm of nonintercourse (and not on, for example, a presidential proclamation), the case “present[ed] questions of general law 157 158

159 160 161 162 163 164

Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (“an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”). On the modern debate over these propositions, see, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997); Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie, 66 Fordham L. Rev. 393, 435–36 (1997); Gerald L. Neuman, Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371, 380 (1997); A.M. Weisburd, State Courts, Federal Courts and International Cases, 20 Yale J. Int’l L. 1 (1995). E.g., Bradley & Goldsmith, supra note 158, at 824 n.48. 92 U.S. 286, 286–87 (1876). 119 U.S. 436 (1886). 146 U.S. 657, 683 (1892). 92 U.S. at 286. Id. at 287 (distinguishing Matthews v. McStea, 91 U.S. 7 (1875)).

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alone”165 that were not cognizable by the Supreme Court. If there was any doubt over what the Court was arguing about, it was dispelled in Justice Bradley’s dissent: When a citizen of the United States claims exemption from the ordinary obligations of a contract by reason of the existence of a war between his government and that of the other parties to it, the claim is made under the laws of the United States by which trade and intercourse with the enemy are forbidden. It is not by virtue of the State law that such intercourse is forbidden; for a separate State cannot wage war: that is the prerogative of the general government. It is in accordance with international law, it is true; but international law has the force of law in our courts, because it is adopted and used by the United States. . . . [T]he laws which the citizens of the United States are to obey in regard to intercourse with a nation or people with which they are at war are laws of the United States. These laws will be the unwritten international law, if nothing be adopted or announced to the contrary; or the express regulations of the government, when it sees fit to make them. But in both cases it is the law of the United States for the time being, whether written or unwritten.166

This seemed also to be the thrust of the Court’s opinion in Ker, which noted that “the decision of that question [whether the forcible abduction of a criminal defendant abnegates jurisdiction] is as much within the province of the state court as a question of common law, or of the law of nations, of which that court is bound to take notice. . . . And, though we might or might not differ with the Illinois court on that subject, it is one in which we have no right to review their decision.”167 What does remain in question, though, is the extent to which state courts or legislatures could override norms of customary international law or general maritime law, as opposed to merely declaring them, as in Ker.168 Although the post–Civil War Court was emphatic that customary international law was not federal law for purposes of establishing federal question jurisdiction, that is not the same as holding that States are at liberty to change that law at whim. Indeed, that appears to be the import of the Court’s holding in Huntington: [T]he question [of enforcing foreign judgments] is not one of local, but of international, law. . . . In this country, the question of international law must be determined in the first instance by the court, state or national, in which the suit is brought. If the suit is brought in a circuit court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions. . . . If a suit on the original liability under the statute of one state is brought in a court of another state, the constitution and laws of the United States have not authorized its decision upon such a question to be reviewed by this court.169 165 166 167 168 169

Id. at 286. Id. at 287–88 (Bradley, J., dissenting). Ker v. Illinois, 119 U.S. 436, 444 (1886). Id. (citing English and U.S. authorities for proposition that forced apprehension of a criminal suspect does not abrogate a court’s jurisdiction to try). 146 U.S. at 683 (citing Hendren); see also The Lottawanna, 88 U.S. 558, 575 (1874) (“The question as to the true limits of maritime law and admiralty jurisdiction is undoubtedly . . . exclusively a judicial question, and no State law or act of Congress can make it broader, or (it may be added) narrower, than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it.” (citing The St. Lawrence, 66 U.S. 522, 526–27 (1861))).


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So, the safer reading of Huntington, Ker, and Hendren is that while customary international law norms are not federal law for purposes of federal question jurisdiction under the 1875 Judiciary Act,170 their substantive status remained indeterminate. Nothing in this trilogy of cases contradicted the idea that a rule of customary international law or general maritime law, as recognized by the Supreme Court, was preemptive of contrary state law. While scholars have focused on the trilogy of Huntington, Ker, and Hendren, they have tended to overlook other authorities from this period. A prime example is Justice Bradley’s opinion in The Lottawanna, later relied on by the Supreme Court to justify a sweeping preemption of state maritime laws: That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend “to all cases of admiralty and maritime jurisdiction.” . . . One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states.171

From this language emphasizing the “uniformity and consistency” of the general maritime law came Southern Pacific Co. v. Jensen’s controversial holding that the Constitution’s grant of admiralty jurisdiction to the federal courts preempted contrary state legislation that had the effect of “work[ing] material prejudice to the characteristic features of the general maritime law, or interfer[ing] with the proper harmony and uniformity of that law in its international and interstate relations.”172 This result is confirmed in the handful of original jurisdiction cases in which the post–Civil War Court applied customary international law norms against States of the Union (albeit in the idiom of constitutional or treaty interpretation), even when such norms had not been directly incorporated through treaties or statutes.173 In certain paradigmatic realms of U.S. foreign relations law, particularly doctrines that directly affected diplomatic affairs with other nations, the Court seemed to adopt a sensibility that, although these were “general law” doctrines, they were not subject to state-law control. For example, in the locus classicus of the act of state doctrine, the 1897 decision in Underhill v. Hernandez, Chief Justice Fuller’s invocation of “principles” and 170 171 172 173

Act of March 3, 1875, § 1, 8 Stat. 470, currently codified at 28 U.S.C. § 1331. 88 U.S. at 575. 244 U.S. 205, 216 (1917); see also Chapter 7, pp. 231–33; David J. Bederman, Uniformity, Delegation and the Dormant Admiralty Clause, 28 J. Mar. L. & Com. 1 (1997). See, e.g., New Hampshire v. Louisiana, 108 U.S. 76, 90 (1883) (“There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of redress without the intervention of their government.” (citing 2 Robert Phillimore, Commentaries on International Law 12 (2d ed. 1871)); Iowa v. Illinois, 147 U.S. 1, 8–10 (1893) (relying on international law sources for the thalweg rule of delimitation on river boundaries).

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“settled rules” against certain suits implicating foreign sovereign authority174 – and his citation to decisions that seem to articulate a position in state practice175 – are categorical. That would seem to undermine any possibility of a contrary state-law rule of decision permitting such suits to proceed (although the issue was not presented in Underhill or otherwise). The overall impression that one is left with is that Justice Gray’s famous declaration in The Paquete Habana did not conclusively resolve customary international law’s position in the American legal order. On the two matters addressed here – precisely how a customary international law norm was incorporated into U.S. law and how such transformation affected customary international law’s status as general law – the Court appeared studiously agnostic or, worse, contradictory. Perhaps this is not surprising because, except in a handful of contexts presented by the application of general maritime law,176 these issues were not directly before the Court. Nevertheless, the post–Civil War Court’s customary international law jurisprudence – whether appearing as holding or dicta – would prove enormously influential for subsequent Justices.

D. Customary International Law and Presidential Power The last issue to be considered here is how Justice Gray, in The Paquete Habana, came to qualify his famous statement of customary international law’s status as “part of our law,” intimating that a “controlling executive . . . act” could preempt a contrary customary international law norm.177 By a “controlling executive act,” Justice Gray meant an “order of the President [that] has expressly authorized [fishing vessels] to be taken and confiscated.”178 Justice Gray’s caveat has been called The Paquete Habana’s “Achilles heel”179 and has sparked an extraordinary academic debate about the scope of the President’s powers.180 But, for present purposes, the issue is to situate Justice Gray’s statement – and Chief Justice Fuller’s dissent on this point – in the wider context of the Supreme Court’s customary international law jurisprudence from this period. 174 175 176 177

178 179 180

168 U.S. 250, 252–53 (1897). See id. at 253. See, e.g., The Lottawanna, 88 U.S. at 572–77. The Paquete Habana, 175 U.S. 677, 700 (1900) (“where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations”); see also id. at 708 (“This rule of international law is one which prize courts administering the law of nations are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.”). This issue is analytically distinct from the deference accorded to executive branch actions in the foreign relations field. See, e.g., Frelinghuysen v. Key, 110 U.S. 63, 71–73, 75 (1884); Underhill v. Hernandez, 168 U.S. 250, 253 (1897) (“That these were facts of which the court is bound to take judicial notice, and for information as to which it may consult the Department of State, there can be no doubt.” (citing Jones v. United States, 137 U. S. 202 (1890); Mighell v. Sultan of Jahore, (1894) 1 Q.B. 149 (Eng.))); La Abra Silver Min. Co. v. United States, 175 U.S. 423, 462–63 (1899). 175 U.S. at 711. Dodge, supra note 41, at 202. See, e.g., Agora: May the President Violate Customary International Law? (pts. 1 & 2), 80 Am. J. Int’l L. 913 (1986), 81 Am. J. Int’l L. 371 (1987) (presenting series of essays debating whether President may act contrary to international law); The Authority of the United States Executive to Interpret, Articulate or Violate the Norms of International Law, 80 Am. Soc’y Int’l L. Proc. 297 (1986) (discussing constitutional and federal common law arguments as to executive authority to violate international law); Jordan J. Paust, Paquete and the President: Rediscovering the Brief for the United States, 34 Va. J. Int’l L. 981 (1994).


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As has been observed by many writers, the main point of the debate between Justice Gray and Chief Justice Fuller in The Paquete Habana is what Chief Justice Marshall meant when he wrote the following in the 1814 decision of Brown v. United States: This argument [that private enemy property is immune from seizure at the outset of hostilities absent an express legislative act] must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.181

Chief Justice Fuller in dissent construed this holding as license for the President to violate customary international law norms at will.182 Inasmuch as the President’s April 26, 1898, declaration (at the outset of the Spanish-American War) did not expressly immunize fishing vessels, he noted that it was enough for the dissenters that the U.S. government was expressly disavowing a customary international law norm in the litigation.183 Fuller thus concluded, “[E]xemption from the rigors of war is in the control of the Executive. He is bound by no immutable rule on the subject. It is for him to apply, or to modify, or to deny altogether such immunity as may have been usually extended.”184 Justice Gray’s riposte185 to this dissent has been justly critiqued186 as weak. When Marshall in Brown described (in dicta) the sovereign’s power to disregard an international “usage,” he did not mean the President’s power. According to his opinion, in the United States the choice to follow or reject an international “usage” is “proper for the consideration of the legislature, not of the executive or judiciary.”187 Brown held only that executive seizure of enemy property in wartime requires congressional approval and that a declaration of war alone did not grant that approval.188 Indeed, Justice Story’s dissent in Brown, while exalting executive power to seize enemy property after a declaration of war, was still careful to note that the President “cannot lawfully transcend the rules of warfare established among civilized nations. He cannot lawfully exercise powers or authorize proceedings which the civilized world repudiates and disclaims.”189 Nothing in the 1863 Prize Cases challenged this thinking. While the Court validated Lincoln’s blockade of Confederate ports, it regarded the blockade as consistent with the law of nations.190 Indeed, the Lincoln administration conceded in its briefing and 181 182 183

184 185 186 187 188 189 190

12 U.S. 110, 128 (1814). 175 U.S. at 715 (Fuller, C.J., dissenting). Id. at 716–17 (Fuller, C.J., dissenting) (“It is impossible to concede that the Admiral ratified these captures in disregard of established international law and the proclamation, or that the President, if he had been of opinion that there was any infraction of law or proclamation, would not have intervened prior to condemnation.”). Id. at 720 (Fuller, C.J., dissenting) . Id. at 710–11. See Dodge, supra note 41, at 201. Brown, 12 U.S. at 124. See Chapter 1, pp. 34–35; Dodge, supra note 41, at 200–1. 12 U.S. at 153. See 67 U.S. 635, 666 (1863) (“The right of prize and capture . . . is governed and adjudged under the law of nations”); see also id. at 698–99 (Nelson, J., dissenting) (suggesting that the President’s blockade was permissible under the law of nations, but not the Constitution).

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argument, and the Court assumed, that the executive branch could not violate customary international law in suppressing the southern rebellion.191 What is thus confusing is Justice Gray’s divergent treatment of executive statements in The Paquete Habana and The Panama. As already noted, in The Paquete Habana, Gray assumed that inasmuch as the President’s April 22, 1898, proclamation – which indicated that the United States would maintain a blockade “in pursuance of the laws of the United States, and the law of nations applicable to such cases”192 – did not lift the previously existing immunization of fishing vessels, they were still covered. However, in The Panama, he proceeded on the opposite tack: The provision of the sixth clause of the President’s proclamation of April 26, 1898, relating to interference with the voyages of mail steamships, appears by the context to apply to neutral vessels only, and not to restrict in any degree the authority of the United States, or of their naval officers, to search and seize vessels carrying the mails between the United States and the enemy’s country. Nor can the authority to do so, in time of war, be affected by the facts that before the war a collector of customs had granted a clearance, and a postmaster had put mails on board, for a port which was not then, but has since become, enemy’s country. Moreover, at the time of the capture of the Panama, this proclamation had not been issued. Without an express order of the government, a merchant vessel is not privileged from search or seizure by the fact that it has a government mail on board.193

Put another way, because an exemption from capture of mail steamers had not been previously established as a customary international law norm, it was incumbent on the shipowners to show that the President had specially exempted them, and this they could not demonstrate. The way, then, to harmonize Brown, the Prize Cases, The Paquete Habana, and The Panama is to accept, in each instance, the Court’s characterization of whether a norm of customary international law had been proven. If so, the President was not at liberty to deviate (unless, arguably, an act of Congress so allowed). If not, the President was free to adopt or reject the proposed customary international law rule. Justice Gray was by no means holding that the President had unfettered authority to violate customary international law. Indeed, his “controlling executive . . . act” caveat is obviously dicta in light of the Court’s reading of the April 22, 1898, proclamation. Rather, when Justice Gray’s statement in The Paquete Habana is read with his analysis in The Panama, the calculus is one of a presumption – where a customary international law rule was clearly established, the President would presumably follow it; when the norm was uncertain, the President could ignore it.194

III. Conclusion In many ways, Justice Gray’s stirring rhetoric and principled holding in The Paquete Habana represent a high-water mark for customary international law’s normative value 191

192 193 194

See Thomas H. Lee & Michael D. Ramsey, The Story of the Prize Cases: Executive Action and Judicial Review in Wartime, in Presidential Power Stories (Christopher H. Schroeder & Curtis A. Bradley eds., 2009). Proclamation No. 6, 30 Stat. 1769 (1898). 176 U.S. 535, 542–43 (1900). Other readings of Paquete Habana are certainly plausible, and many scholars have attempted to divine why a “controlling executive act” was not found to exist based on the executive branch’s litigation posture in the case. For further views, see Dodge, supra note 41; and material cited supra p. 121, n. 183.


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in U.S. jurisprudence, at least as expressed in U.S. Supreme Court decisions. It is questionable whether a customary international law norm – standing alone, unsupported by treaty, and heavily contested by a President who manifestly desired to ignore it – would ever again be vindicated in this fashion. Yet The Paquete Habana was no revolutionary moment, no Battleship Potemkin in Caribbean guise. To make complete sense of Justice Gray’s vision of customary international law, it is necessary to acknowledge how much of it was derivative of earlier holdings of the post–Civil War Court, including the decisions in The Lottawanna, The Scotia, Wildenhus’s Case, and Hilton v. Guyot. Many elements of the current debates about customary international law and U.S. foreign relations law have their intellectual roots in the Supreme Court’s decisional law between 1861 and 1900. This modest contribution has attempted both to recapture and to reconceptualize this jurisprudence.

4 International Law as an Interpretive Tool in the Supreme Court, 1861–1900 Thomas H. Lee and David L. Sloss∗

This chapter describes the U.S. Supreme Court’s use of international law as an interpretive tool in statutory and constitutional interpretation cases from 1861 to 1900. Part I discusses the Court’s use of international law in statutory interpretation cases. Part II examines the role that international law played in the Court’s constitutional decisions. Part III discusses the role of international law in the evolution of foreign, federal, and state sovereign immunity doctrines during this period. Part IV addresses overarching themes that emerge from the analysis in the first three parts.

I. International Law and Statutory Interpretation Part I surveys the Supreme Court’s use of international law as an aid to statutory interpretation in cases decided between 1861 and 1900. The analysis is divided into three sections. The first section addresses the Court’s approach in cases implicating the application of congressional enactments outside the United States. In these cases, the Court often invoked international law to help justify the extraterritorial application of federal statutes. Surprisingly, the Court did not decide any cases during this period in which it applied international law to constrain the extraterritorial application of federal statutes, although it had some opportunities to do so. The next two sections analyze how the Court resolved apparent conflicts between statutes and the unwritten law of nations, and between statutes and treaties, respectively. The analysis demonstrates that in statutory interpretation cases during this period the Court generally construed statutes to avoid conflicts with international law. These cases are best understood as applications of the Charming Betsy canon, which directs that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”1 ∗

1

Thomas H. Lee is Leitner Family Professor of Law, Fordham University School of Law. David L. Sloss is Professor of Law and Director, Center for Global Law & Policy, Santa Clara University School of Law. Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804); see Chapter 1, p. 37.

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International Law as an Interpretive Tool in the Supreme Court, 1861–1900

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A. Extraterritoriality By the middle of the nineteenth century, it was well established in both U.S. and international law that a nation’s jurisdiction “within its own territory . . . [was] exclusive and absolute,”2 but that a nation’s laws generally had no binding force outside its territory.3 However, customary international law authorized the United States to regulate U.S.flagged vessels on the high seas, and specific treaties authorized U.S. consuls to exercise adjudicatory jurisdiction in foreign countries. The Supreme Court decided several cases between 1861 and 1900 that involved vessels on the high seas and foreign consuls. 1. Vessels on the High Seas: During the nineteenth century, a state’s territory extended “a marine league, or as far as a cannon-shot will reach from the shore.”4 Beyond that were the high seas, which belonged to no state. Customary international law clearly established that the United States could exercise jurisdiction over American ships on the high seas. However, custom barred application of U.S. domestic law to foreign-flagged vessels on the high seas. Similarly, it barred application of U.S. domestic law to American-flagged vessels in foreign territorial waters, unless the dispute involved the ship’s “internal affairs.”5 The Court adjudicated several cases during this period involving U.S. vessels on the high seas.6 The most problematic such case raised difficult questions about the meaning of the term “high seas.” In United States v. Rodgers,7 federal prosecutors indicted Rodgers for assault committed on a U.S.-flagged vessel in the Detroit River. A divided circuit court asked the Supreme Court to decide whether U.S. courts had jurisdiction over the case.8 The relevant federal criminal statute gave U.S. courts jurisdiction over crimes committed on U.S. vessels on “the high seas.” Justice Stephen Field framed the question as whether the term “high seas,” as used in that statute, “is applicable to the open, uninclosed waters of the Great Lakes, between which the Detroit River is a connecting stream.”9 After canvassing various international authorities, he concluded that the term “high seas” was “as applicable to the open waters of the Great Northern Lakes as it is to the open waters of those bodies usually designated as seas.”10 Accordingly, the Detroit River was also part of the “high seas,” and vessels anywhere on that river “constitute a part of the territory of the nation to which the owners belong. While they are on the navigable waters of the river, they are within the admiralty jurisdiction of that country.”11 The key counterargument was that a treaty between the United States and Great Britain had established the center line of the Great Lakes as the U.S.-Canada boundary. The treaty accorded with the default law of nations rule: “If this lake is situated between 2 3

4 5 6 7 8 9 10 11

The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812). See generally Henry Wheaton, Elements of International Law §§ 161–62, 177–79, 186–89 (Richard Henry Dana, Jr. ed., 8th ed. 1866); see also John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int’l L. 351 (2010). Wheaton, supra note 3, § 177. See id., §§ 177–81, 186–89. See, e.g., St. Clair v. United States, 154 U.S. 134, 151–52 (1894); Wilson v. McNamee, 102 U.S. 572, 574 (1881); Crapo v. Kelly, 83 U.S. 610, 624–25 (1873). 150 U.S. 249 (1893). Id. at 251. Id. at 253. Id. at 256. Id. at 260.

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two states, it is presumed to be divided between them at the middle, while there is no title, no constant and manifest custom to determine otherwise.”12 The defendant committed the crime when the ship was on the Canadian side of the boundary. If the Great Lakes were not “high seas,” then treaty and custom seemed to ordain that the upper half were Canadian territorial waters. The United States could not exercise jurisdiction over crimes committed in Canadian territorial waters, regardless of whether the crime occurred on a U.S.-flagged ship. Justice Field concluded that the treaty did not change the character of the Great Lakes as “high seas”: We do not accept the doctrine that because, by the treaty between the United States and Great Britain, the boundary line between the two countries is run through the center of the lakes, their character as seas is changed, or that the jurisdiction of the United States to . . . punish offenses committed upon such [American] vessels, is in any respect impaired. Whatever effect may be given to the boundary line between the two countries, the jurisdiction of the United States over the vessels of their citizens navigating those waters, and the persons on board, remains unaffected.13

The Court’s holding that the Great Lakes (and the Detroit River) were “high seas” drew sharp dissents from Justices Henry Brown and Horace Gray. Field’s majority opinion seemed inconsistent with the treaty and with then-prevailing views of the international law of the seas.14 Its decision enabled U.S. prosecutors to prosecute a crime that arguably fell within the exclusive jurisdiction of Canada. For present purposes, however, the key point is that the Court justified its holding in terms of international law: Justice Field maintained, not entirely convincingly, that the United States was merely applying its domestic law to a U.S. vessel on the high seas, which was permissible under international law. Thus, all of the Justices agreed that international law governed the legitimacy of applying a U.S. criminal statute to extraterritorial conduct. Rodgers involved a U.S.-flagged vessel. In contrast, Supreme Court cases involving foreign-flagged ships on the high seas can be divided into two groups. First, if such a case came “within the domain of the general law of nations,” it was a “proper subject of inquiry in any court of admiralty which first obtain[ed] jurisdiction of the rescued or offending ship.”15 Such cases did not involve extraterritorial application of U.S. law at all; rather, they involved application of the law of nations by U.S. courts.16 Second, customary international law prohibited the application of municipal laws to foreign-flagged vessels on the high seas.17 The judicial record suggests that Congress and the President rarely attempted to apply U.S. laws in contravention of this principle, or if they did so, the cases rarely reached the Supreme Court. In re Cooper18 is apparently the only Supreme Court case during the period in which a party invoked customary international law to bar the application of a federal statute to a foreign vessel on the high 12

13 14 15 16 17 18

Emmerich de Vattel, The Law of Nations or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, Book 1, § 274, at 183 (4th Am. ed. 1820) (1758). Rodgers, 150 U.S. at 265. See Wheaton, supra note 3, § 11 at 150. The Belgenland, 114 U.S. 355, 362–63 (1885). See Chapter 3. See Wheaton, supra note 3, § 179, n.108. 143 U.S. 472 (1892).


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seas. Like Rodgers, Cooper involved an aggressive effort by the federal executive branch to enforce U.S. laws extraterritorially in apparent contravention of international law. Unlike Rodgers, however, the Court in Cooper did not justify the government’s conduct as consistent with international law. Instead, it invoked a procedural rule to avoid making a decision on the merits. In Cooper, a U.S. revenue cutter seized a Canadian seal-hunting vessel, the Sayward, and filed a libel for condemnation of the vessel and its cargo – a filing in admiralty court analogous to a complaint for civil forfeiture. The libel alleged violation of a federal statute prohibiting killing of seals “within the limits of Alaska territory, or in the waters thereof.”19 The petitioner, the ship’s owner, contended that there was no statutory violation because Alaskan waters extended only “three miles or a marine league from the shore of the continent, or from the shores of one of the adjacent islands,” and the Sayward was “forcibly arrested by the United States on the high seas 59 miles from shore.”20 The customary international law of the sea at that time generally recognized three miles as the extent of territorial waters. Nevertheless, the U.S. executive branch asserted “territorial jurisdiction over Behring sea to an extent exceeding 59 miles from the shores of Alaska.”21 The Executive’s position relied on the 1867 treaty in which the United States acquired Alaska from Russia. The treaty marked the “western limit . . . of the territories and dominion conveyed” by a line through the Bering Sea that would presumably have encompassed the point of seizure. Congress gave no clear guidance whether the sealhunting statute at issue in Cooper applied only within the three-mile customary limit or whether it was intended to extend throughout the area referenced in the 1867 treaty. (The statute referred only to “the dominion of the United States in the waters of the Behring Sea.”22 ) As the Court noted, the House bill indicated that the statute applied to “all the waters of Behring Sea in Alaska embraced within the boundary lines mentioned and described in the treaty with Russia, dated March 30, A.D. 1867 by which the Territory of Alaska was ceded to the United States,”23 but the Senate rejected that language. Because Congress had been vague on the precise extent of U.S. jurisdiction in the Bering Sea,24 the petitioner urged the Court to construe the statute to extend no farther than the three-mile limit recognized by customary international law. This would have invalidated the government’s seizure. In response, the government argued that Congress’s deliberate choice to enact a vague statutory provision, “with full knowledge of the executive action already had and of the diplomatic situation, justified the president in the conclusion that it was his duty . . . to adhere to the construction already insisted upon as to the extent of the dominion of the United States, and to continue to act accordingly.”25 The Court found “much force” in the government’s argument. Even so, the Court did not decide the case on that basis, perhaps because it did not wish to provide judicial approval of an action in contravention of international law. 19 20 21

22 23 24 25

Id. at 497. Id. at 498. Id. at 499. The Court explained, “[T]he government persistently maintains that such jurisdiction belongs to it, based not only on the peculiar nature of the seal fisheries and the property of the government in them, but also upon the position that this jurisdiction was asserted by Russia for more than 90 years [when Alaska was Russian territory], and by that government transferred to the United States.” Id. Id. at 502. Id. See id. at 502–03. Id. at 502.

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Instead, the Court dodged the question on a procedural point by holding that its statutory appellate jurisdiction did not extend to review of the district court’s “factual” finding that the Sayward was “engaged in killing and did kill fur seals in that portion of Behring sea . . . within the waters of Alaska.”26 The Court thus sustained the executive branch’s aggressive enforcement of an ambiguous U.S. statute extraterritorially, in likely contravention of applicable principles of international law. But the holding was narrowly confined to a technicality, and the Court indicated (somewhat disingenuously) that the petitioner had conceded that the seizure occurred within U.S. territory – even though that was the main contested issue in the case. There is an interesting epilogue to Cooper. After the Supreme Court decided the case, the State Department agreed to have the matter submitted to international arbitration. The tribunal rejected the United States’ attempt to enforce its seal-hunting ban on the high seas, and the State Department made due reparations.27 2. Consular Cases: The United States was party to various treaties governing the rights and duties of U.S. consular officials stationed in foreign ports. Consuls were quasidiplomatic agents generally charged with promoting the trade and commercial interests of the sponsoring sovereign. In addition, consular treaties typically granted U.S. consular officials adjudicative power over disputes between American citizens in the territory of the other contracting state. The scope of consular powers depended on the underlying treaty. In Dainese v. Hale,28 the defendant was the U.S. consul-general in Egypt. The consulgeneral attached assets belonging to the plaintiff in adjudicating a civil dispute between two U.S. citizens. The plaintiff brought suit in U.S. court to recover the value of those assets. The key issue was whether governing U.S. treaties and statutes gave the consulgeneral authority to attach plaintiff’s assets.29 The Court noted that “the powers of our Consul-General in Egypt . . . must be regulated by the treaties with Turkey and by the laws of the United States then in force.”30 After examining the relevant treaties and implementing statutes, the Court concluded that “the minister and principal consuls of the United States in Turkey (including the consul-general in Egypt) had all such jurisdiction in civil causes between citizens of the United States as was permitted by the laws of Turkey.”31 However, because the defendant failed to prove the existence of Turkish law authorizing the attachment, the Court ruled for the plaintiff.32 In In re Ross (Ross v. McIntyre), a U.S. consular tribunal in Japan convicted Ross, a British subject, of murder committed in Japanese territorial waters while serving on an American merchant ship.33 Several years later, while serving time in federal prison in New York, Ross filed a habeas corpus petition challenging the jurisdiction of the consular tribunal that convicted and sentenced him. His petition implicated the treaties granting the U.S. consul-general adjudicative jurisdiction in Japan and the federal statute 26 27 28 29 30 31 32 33

Id. at 508. 1 John Bassett Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party 949, 960 (1898). 91 U.S. 13 (1875). Id. at 14–15. Id. at 16. Id. at 20. Id. at 20–21. 140 U.S. 453, 454 (1891).


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implementing those treaty provisions. The relevant treaties clearly granted the consular tribunal jurisdiction over crimes by U.S. citizens in Japan.34 However, as Justice Field conceded in his opinion for the Court, Ross’s British nationality made his attack on the consular tribunal’s jurisdiction “more plausible.”35 Even so, after a detailed analysis of relevant treaties and statutes,36 the Court concluded that Ross’s service as a seaman on an American ship made him subject to U.S. laws:37 “Reading the treaty and statute together, in view of the purpose designed to be accomplished, we are satisfied that it was intended by them to bring within our laws all who are citizens, and also all who, though not strictly citizens, are by their service [on American ships] equally entitled to the care and protection of the government.”38 Ross is best known for its holding that the U.S. Constitution does not apply extraterritorially.39 What is often forgotten about Ross, however, is the Court’s holding about the extraterritorial reach of the statute at issue, which implemented a treaty granting adjudicative jurisdiction to the U.S. consul-general at a time when such treaties were quite common. The contrast between Ross and Dainese v. Hale is instructive. While Ross adopted a fairly expansive interpretation of the statutory jurisdiction of U.S. consuls overseas, Dainese took a narrower view. The difference may be explained, at least in part, by the fact that Ross involved criminal jurisdiction over a person, whereas Dainese involved civil jurisdiction and incidental attachment of tangible property located within the foreign country. The Court may have thought that a territorial sovereign exercised virtually absolute control over tangible property within its territory (as in Dainese), but claims of territorial sovereignty had to yield somewhat when the rights of individual criminal defendants were at stake, especially if (as in Ross) the United States believed that the territorial state had a primitive judicial system by Western standards.

B. The Charming Betsy Canon and Customary International Law Between 1861 and 1900, apart from cases involving the extraterritorial application of U.S. laws, the Supreme Court frequently invoked the unwritten law of nations to aid interpretation of statutes and regulations. The cases generally fall into three categories: wartime seizures, maritime collisions, and consular relations. The Court’s reliance on international law in these cases is hardly surprising because they all involve statutes with international subject matter, rather than statutes of broad domestic applicability. Here, we discuss a few select cases to illustrate the Court’s use of international law as an aid to statutory interpretation. 34 35 36 37 38

39

See id. at 465–67. Id. at 472. Id. at 465–70. Id. at 472–75. Id. at 475. In a “mirror-image” case, where a Belgian national killed another Belgian national on a Belgian vessel in a New Jersey port, the Court rejected the argument that the internal affairs exception, codified in a treaty between the United States and Belgium, vested exclusive jurisdiction in the Belgian consul. Mali v. Keeper of Common Jail (Wildenhus’s Case), 120 U.S. 1 (1887). The Court reasoned that, under the relevant treaty, each nation “has reserved to itself the right to interfere [with the consul’s jurisdiction] if the disorder on board [a vessel] is of a nature to disturb the public tranquility.” Id. at 17. See Kal Raustiala, Does the Constitution Follow the Flag: The Evolution of Territoriality in American Law 61–68 (2009); see also infra pp. 148–50 (discussing constitutional aspects of Ross).

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In re Baiz40 involved a suit filed in federal district court against Jacob Baiz, a U.S. citizen acting as the consul-general of Guatemala and Honduras for a brief period when those nations did not have credentialed ambassadors in the United States. Baiz moved to dismiss the suit, invoking Section 687 of the Revised Statutes, which granted the Supreme Court “exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers . . . as a court of law can have consistently with the law of nations.”41 When the district court denied Baiz’s motion, he sought a writ of prohibition from the Supreme Court. The main question was whether Baiz was a “public minister” within the meaning of Section 687. Baiz submitted U.S. State Department correspondence recognizing him as “chargé d’affaires for the express purpose of negotiating” and conducting diplomatic business.42 The State Department had written in that correspondence that his “substitutionary agency” was “different from recognizing you as invested with the diplomatic character as the incumbent of the mission.”43 Hence, the department did not issue a formal certificate of diplomatic immunity, to which the Court indicated it would have deferred. The Court consulted Story, Wheaton, and Martens (nineteenth-century treatise writers who were recognized international law authorities) to help ascertain whether Baiz qualified as a “public minister[]” within the meaning of the statute.44 After canvassing these authorities, the Court concluded: “We are of opinion that Mr. Baiz was not . . . invested with and exercising the principal diplomatic functions, or in any view a ‘diplomatic officer.’ He was not a public minister within the intent and meaning of section 687.”45 Similarly, in a series of maritime collision cases decided between 1861 and 1900, the Court consulted international maritime law to help interpret federal statutes limiting maritime carrier liability. In Norwich Co. v. Wright,46 the Court applied an 1851 statute designed to limit shipowners’ liability.47 It undertook a detailed analysis of the historical evolution of maritime law governing the liability of shipowners, beginning with the early-seventeenth-century works of the Dutch jurist Hugo Grotius.48 It then construed the 1851 statute against the background of international developments in the intervening centuries, concluding that the owners “were entitled to the benefit of the act of 1851, as against the claim of the libellants.”49 The Court applied the same statute in Place v. Norwich & New York Transportation Co.50 and The Main v. Williams,51 in both cases seeking guidance from general maritime law, primarily as interpreted by European scholars.52 Justice Joseph Bradley wrote for the majority in Place; his opinion imposed substantial limitations on shipowners’ liability. Bradley admitted that the case could be decided 40 41 42 43 44 45 46 47 48 49 50 51 52

135 U.S. 403 (1890). Id. at 417–18. Id. at 411–12. Id. at 411. Id. at 420–24. Id. at 425. 80 U.S. 104 (1872). Act of March 3, 1851, 9 Stat. 635. Norwich, 80 U.S. at 116–20. Id. at 122. 118 U.S. 468 (1886). 152 U.S. 122 (1894). Id. at 126–32; Place, 118 U.S. at 496–502.


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solely as a matter of statutory construction, without reference to foreign precedents, but concluded that such precedents were consistent with the majority’s construction: Having, as we think, ascertained the true construction of the statute, the point in dispute is really settled. It is a question of construction, and does not require an examination of the general maritime law to determine it. If the rule of the maritime law is different, the statute must prevail. But from such examination as we have been able to make, we think that the weight of maritime authority is in accord with the disposition of our statute as we have construed it, and that the statute has adopted the maritime law on this point as well as on the question of time for estimating the value of the ship.53

Justice Stanley Matthews wrote a strong dissent, arguing that the majority’s interpretation of the statute left “the innocent party suffering the damage to go entirely without redress.”54 The dissent, like the majority, invoked international law to support its statutory interpretation.55 In the decade after the Civil War, the Court decided more than two dozen cases under the Abandoned and Captured Property Act.56 The enactment codified rules for the treatment of “enemy” property (mostly cotton) found to be abandoned or captured by Union forces during the Civil War.57 In many of these cases, the Court looked to the international laws of war for guidance in applying the statute.58 Young v. United States59 and United States v. Padelford60 are representative. Young was a bankruptcy trustee representing the interests of Alex Collie, a British merchant who sold war materials to the South during the war. When Union troops captured Savannah, they seized a large quantity of Collie’s cotton. Young brought suit in the Court of Claims to collect the proceeds from sale of the captured cotton.61 To prevail under the statute, Young had to show that Collie did not give “aid or comfort to the present rebellion.”62 Collie failed this test as a factual matter because he aided the rebellion by selling war materials to the Confederacy.63 Not content to rest its decision solely on this ground, however, the Court invoked the laws of war to support its view that “during the war, cotton, found within the Confederate territory, though the private property of non-combatants, was a legitimate subject of capture by the national forces.”64 Consequently, despite the seizure of his property, “Collie has been deprived of no right he ever had.”65 In short, the laws of war supported the Court’s conclusion that the government had no duty to compensate Collie for the seizure of his property. 53 54 55 56 57

58 59 60 61 62 63 64 65

118 U.S. at 495–96. Id. at 540 (Matthews, J., dissenting). Id. at 530–33. Act of March 3, 1863, 12 Stat. 820. See Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War (2007); Mark A. Weitz, The Confederacy on Trial: The Piracy and Sequestration Cases of 1861 (2005). See, e.g., Lamar v. Browne, 92 U.S. 187, 195–96 (1876); United States v. Lane, 75 U.S. 185, 195 (1869). 97 U.S. 39 (1878). 76 U.S. 531 (1869). Young, 97 U.S. at 39–46. Id. at 61–62 (citing 12 Stat. 820). Id. at 63–65. Id. at 58. Id. at 67.

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Conversely, in United States v. Padelford, the Court invoked the laws of war to support its conclusion that the government owed Padelford compensation for the seizure of his cotton.66 Padelford was a wealthy banker who lived in Georgia and remained loyal to the United States during the war. After Union troops captured Savannah, they seized roughly $250,000 worth of Padelford’s cotton. He sued in the Court of Claims for compensation.67 The government argued that Padelford did not satisfy the statutory test, which required him to prove that “he has never given any aid or comfort to the present rebellion.”68 The Court construed the statute against the background principle “of international law which condemns the seizure of the property of private persons not engaged in actual hostilities, though residing in a hostile territory or region.”69 The Court noted that, on January 18, 1865, Padelford “testified his adhesion to the constitutional government of the Union by taking the oath prescribed by the proclamation of pardon issued by President Lincoln.”70 Northern troops captured Savannah in December 1864, before Padelford swore his oath. However, the Court said, “Rights of possession in private property are not disturbed by the capture of a . . . city or town, until the captor signifies . . . by actual seizure, his determination to regard a particular description of property as not entitled to the immunity usually conceded in conformity with the humane maxims of public law.”71 Because Union troops seized Padelford’s cotton after he had sworn his oath of allegiance, and his oath provided legal protection for “all rights of property . . . against the intervening rights of third persons,”72 the Court held that Padelford was owed compensation.73 During this period, the Court also applied international law to resolve wartime seizure claims arising from the Spanish-American War. In The Buena Ventura, a U.S. naval vessel captured a Spanish merchant ship and brought it to Florida, where a federal district court condemned it as prize.74 In contrast to other prize cases from the Civil War and Spanish-American War, where the Court applied the law of nations directly,75 the Court based its judgment in The Buena Ventura on a presidential proclamation and invoked international law to guide its interpretation of that proclamation. Congress declared that war had existed between the United States and Spain since April 21, 1898.76 The President issued a proclamation on April 26, granting certain Spanish merchant vessels exemption from capture.77 Under that proclamation, the Buena Ventura would have been exempt from capture if it departed from a U.S. port after April 21. However, the Buena Ventura sailed from Ship Island, Mississippi, on April 19.78 Hence, the district court ruled that the ship was not exempt from capture under the proclamation.79 The Supreme Court reversed, stating that it was necessary to give the proclamation’s words “the most liberal and extensive interpretation of which they are capable; and 66 67 68 69 70 71 72 73 74 75 76 77 78 79

76 U.S. 531 (1869). Id. at 531–35. Id. at 535–37. Padelford did, in fact, give some aid to the South during the war, but the facts suggest that he did so reluctantly. See id. at 531–33. Id. at 540. Id. at 542. Id. at 540. Id. at 542. See id. at 540–43. 175 U.S. 384 (1899). E.g., The Paquete Habana, 175 U.S. 677 (1900). The Buena Ventura, 175 U.S. at 389. Id. at 389–90. Id. at 386–87. Id. at 390–91.


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where there are two or more interpretations which possibly might be put upon the language, the one that will be most favorable to the belligerent party, in whose favor the proclamation is issued [i.e., Spanish merchant vessels], ought to be adopted.”80 The Court justified this interpretive approach by noting the U.S. government’s consistent support for international rules “which would in most cases do away with the right to capture the private property of an enemy on the high seas.”81 In The Buena Ventura, the Court adopted an expansive interpretation of private rights under the laws of war, contrary to the litigating position of the executive branch in wartime. This approach is starkly at odds with the Prize Cases, discussed in Part II below, where the Court adopted an expansive view of executive power under the laws of war and justified aggressive infringement of private rights. The contrast between the two cases may indicate that the Court, and perhaps the nation, did not think that the Spanish-American War posed as grave a risk to national security as did the Civil War and therefore did not justify the same degree of infringements on private rights. Or, to restate the point borrowing Edwin Corwin’s revealing terminology,82 the Court arguably decided the Prize Cases under a “wartime” Constitution and decided The Buena Ventura under a “peacetime” Constitution.

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In all the cases discussed in this section, the Court invoked customary rules of international law to interpret federal statutes (or, in The Buena Ventura, a presidential proclamation), even though it was not required to do so. The Court’s reliance on international law generally helped avoid conflicts with the nation’s international legal obligations. The next section addresses cases in which one of the parties asserted a conflict between an earlier treaty and a later-enacted statute. In most of these cases the Court applied a strong presumption in favor of interpreting the statute to conform to the nation’s treaty obligations.

C. The Charming Betsy Canon and the Later-in-Time Rule From 1861 to 1900, the Supreme Court decided numerous cases involving alleged conflicts between an earlier-in-time treaty and a later-in-time statute. For this chapter, we reviewed a total of sixteen such cases.83 Chapter 2 also addresses some of these cases, focusing on the rationale supporting the Court’s adoption of the later-in-time rule during this period.84 In contrast, this section focuses on the interplay between the later-in-time rule and the Charming Betsy canon.85 For presentational purposes, this section divides 80

81 82 83 84 85

Id. at 388. The Court cited two British cases, but did not cite any U.S. precedents to support this claim. Even so, the Court’s language is reminiscent of the canon of liberal interpretation, which the Court had applied in the treaty context at least since 1830. See Shanks v. Dupont, 28 U.S. 242, 249 (1830). 175 U.S. at 388. See Edwin S. Corwin, Total War and the Constitution 168–72 (1947). There may be a few other Supreme Court decisions from this period involving conflicts between treaties and statutes, but these sixteen cases comprise a substantial majority of the relevant cases. Chapter 2, pp. 73–76 (noting adoption of rule that later-in-time statute trumps earlier treaty). During the late nineteenth century, the Court routinely applied the Charming Betsy canon, but it never used the term “Charming Betsy canon.” Only one nineteenth-century Supreme Court opinion cited Charming Betsy to support the principle now called the Charming Betsy canon. Young v. United States, 97 U.S. 39, 50 (1878). The canon did not become firmly associated with Charming Betsy until after World War II. See Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (citing Charming Betsy). Before Lauritzen, only one twentieth-century Supreme Court opinion (a dissent) cited Charming Betsy in support of the relevant principle. Cunard S.S. Co. v. Mellon, 262 U.S. 100, 132 (1923) (Sutherland, J., dissenting).

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these sixteen cases into three groups: four cases relating to Chinese immigrants, nine cases implicating treaties with Indian tribes, and three other cases. In all sixteen cases, the Court faced a choice, at least in theory, between calling the statute ambiguous and applying the Charming Betsy canon to harmonize the statute with U.S. treaty obligations, or applying the later-in-time rule and overriding U.S. treaty obligations. This appears, at first blush, to be a simple binary choice. However, the reality is more complex because in several cases the Court paid lip service to the later-intime rule while adopting a statutory construction that avoided conflicts with U.S. treaty obligations. Thus, from a functional standpoint, the cases can be divided into four groups: six cases where the Court applied a Charming Betsy approach without mentioning the later-in-time rule,86 four cases where the Court applied a statute and derogated from U.S. treaty obligations,87 five cases where the Court cited the later-in-time rule but found no conflict between the statute and the treaty,88 and one case that establishes an exception to the later-in-time rule.89 This fourfold classification is significant because it shows that the Court applied a statute in derogation of U.S. treaty obligations in only four of sixteen cases. In the other twelve cases the Court either applied the earlier-in-time treaty as the controlling rule or construed the statute to avoid conflicts with treaty obligations. 1. Chinese Immigrant Cases: Four Chinese alien cases illustrate the relationship between the Charming Betsy canon and the later-in-time rule: Chew Heong v. United States, Chae Chan Ping v. United States, Lem Moon Sing v. United States, and United States v. Gue Lim. In all four cases, Chinese immigrants claimed that bilateral treaties with China entitled them to enter or to remain in the United States. In all four cases, the government claimed that federal immigration statutes required exclusion or removal of the Chinese aliens. The government won both cases where the Court applied the later-in-time rule. The immigrants won both cases where the Court harmonized the statute with the treaty. In both Chew Heong and Gue Lim, the Court construed federal statutes regulating Chinese immigration to be consistent with U.S. international obligations under bilateral treaties with China. In both cases, the Court’s opinion ringingly endorsed the principle that courts must, whenever possible, construe statutes to avoid conflicts with U.S. treaty obligations. For example, Justice John Marshall Harlan wrote in Chew Heong, “[S]ince the purpose avowed in the act was to faithfully execute the treaty, any interpretation of its provisions would be rejected which imputes to congress an intention to disregard the plighted faith of the government, and, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty.”90 86

87

88

89 90

United States v. Gue Lim, 176 U.S. 459 (1900); Frost v. Wenie, 157 U.S. 46 (1895); Chew Heong v. United States, 112 U.S. 536 (1884); United States v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883); Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733 (1876); Smith v. Stevens, 77 U.S. 321 (1870). Ward v. Race Horse, 163 U.S. 504 (1896); Lem Moon Sing v. United States, 158 U.S. 538 (1895); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889); The Cherokee Tobacco, 78 U.S. 616 (1870). Thomas v. Gay, 169 U.S. 264 (1898); Horner v. United States, 143 U.S. 570 (1892); Whitney v. Robertson, 124 U.S. 190 (1888); Edye v. Robertson (Head Money Cases), 112 U.S. 580 (1884); United States v. McBratney, 104 U.S. 621 (1882). Jones v. Meehan, 175 U.S. 1 (1899). 112 U.S. at 549; see also Gue Lim, 176 U.S. at 465 (“It is impossible to entertain the belief that the Congress of the United States, immediately after the conclusion of a treaty between this country and the Chinese Empire, would, while assuming to carry out its provisions, pass an act which violated or unreasonably


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In both Chae Chan Ping and Lem Moon Sing, the Court applied federal statutes in derogation of U.S. treaty obligations. Although the Court’s decisions were clearly inconsistent with the nation’s international legal obligations as set forth in bilateral treaties, they were consistent with the Charming Betsy canon, which directs that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”91 In these cases, it was not plausible to harmonize federal statutes restricting Chinese immigration with bilateral treaties with China. The Court decided both cases against the backdrop of a series of racially motivated statutes imposing increasingly severe restrictions on Chinese immigration.92 Congress enacted those statutes in response to strong anti-Chinese sentiment, which manifested widespread fear about “vast hordes of [Chinese] people crowding in upon us.”93 Hence, in Chae Chan Ping a unanimous Court held that “the act of 1888 is in contravention of express stipulations of the treaty of 1868, and of the supplemental treaty of 1880.”94 Nevertheless, the Court added, “the last expression of the sovereign will must control.”95 In Lem Moon Sing the Court affirmed the general proposition that “it is the duty of the courts not to construe an act of congress as modifying or annulling a treaty made with another nation, unless its words clearly and plainly point to such a construction.”96 However, the Court added, “There is no room in the language of the act of 1894 to doubt that congress intended that it should be interpreted as we have done in this case.”97 Taken together, the Chinese immigrant cases illustrate three points. First, the Court applied a strong presumption in favor of interpreting federal statutes to conform to U.S. treaty obligations. Second, where Congress unambiguously manifested its intention to derogate from the nation’s international legal obligations, the Court did not second-guess that legislative decision. The Court’s overall approach demonstrates that it valued both compliance with international law and the principle of legislative primacy. Third, all of these cases involved Congress’s plenary power with respect to immigration, which, as discussed later, the Court grounded in general principles of international law relating to inherent sovereign powers. 2. Cases Involving Treaties with Native American Tribes: Between 1861 and 1900, the Supreme Court decided at least nine cases involving alleged conflicts between Native American treaties and later-enacted statutes.98 These cases differ from the Chinese immigrant cases in several ways. First, in the Chinese cases, the immigrants and the federal government were opposing parties. In contrast, because the United States acted in some cases as the defender of Indian rights under treaties, some of the Indian cases

91 92 93 94 95 96 97 98

obstructed the obligation of any provision of the treaty. . . . We ought, therefore, to so consider the act, if it can reasonably be done, as to further the execution, and not to violate the provisions, of the treaty.”). Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). See, e.g., Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 112–19, 123–24 (2002). Chae Chan Ping, 130 U.S. at 606. Id. at 600. Id. Lem Moon Sing, 158 U.S. at 549. Id. Jones v. Meehan, 175 U.S. 1 (1899); Thomas v. Gay, 169 U.S. 264 (1898); Ward v. Race Horse, 163 U.S. 504 (1896); Frost v. Wenie, 157 U.S. 46 (1895); United States v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883); United States v. McBratney, 104 U.S. 621 (1882); Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733 (1876); The Cherokee Tobacco, 78 U.S. 616 (1870); Smith v. Stevens, 77 U.S. 321 (1870).

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involved a “win-win” situation where Indian interests were aligned with federal government interests.99 Second, none of the Chinese immigrant cases implicated the regulatory power of state governments. In contrast, several of the Indian cases raised questions about state governments’ power to regulate territory that had once belonged to Indian tribes.100 Third, in the Chinese immigrant cases, the federal government won every case where the Court applied the later-in-time rule and lost every case where the Court applied the Charming Betsy canon. In contrast, the Indian cases are not as analytically neat: the federal government won some cases in which the Court applied the Charming Betsy canon101 and lost one case where the Court applied the later-in-time rule.102 In light of the preceding comments, it is tempting to conclude that there is no rhyme or reason to the Court’s decisions in Indian cases. However, interesting patterns emerge if one divides the cases into two groups: four cases involving disputes over title to real property (“real-property cases”)103 and five “regulatory” cases involving the respective powers of the state and federal governments to impose taxes and criminalize conduct occurring on Indian territory or on state land that used to be Indian land.104 The Supreme Court applied a very different approach in the real-property cases than it did in the regulatory cases. In all four real-property cases, the Court applied the treaty and ruled in favor of Native American title; the Court did not invoke the later-in-time rule in any of these cases. In contrast, the Court applied the later-in-time rule in four of the five regulatory cases.105 In two of those cases, the Court applied the later-enacted statute to derogate from Indian treaty rights.106 Jones v. Meehan is the most significant of the four property cases. Jones was a quiet title action for land in Minnesota.107 In an 1863 treaty, the Chippewa Indians ceded a large tract of land to the United States, but reserved 640 acres for Chief Moose Dung. In 1891, Moose Dung the younger, the chief’s sole heir, leased a small portion of that land to the plaintiffs, who were U.S. citizens. Then in 1894, he leased the entire 640 acres to the defendants, also U.S. citizens.108 In August 1894, Congress authorized the Secretary of the Interior to approve the 1894 lease to the defendants.109 The Supreme 99 100

101 102 103 104

105 106 107 108 109

E.g., United States v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883); Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733 (1876). E.g., Ward v. Race Horse, 163 U.S. 504 (1896) (power of Wyoming state government to prosecute Indian for hunting in area where he claimed treaty-protected hunting rights); United States v. McBratney, 104 U.S. 621 (1882) (whether federal or state government has jurisdiction to prosecute white man who committed crime on Indian reservation in state of Colorado). E.g., United States v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883); Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733 (1876). United States v. McBratney, 104 U.S. 621 (1882). Jones v. Meehan, 175 U.S. 1 (1899); Frost v. Wenie, 157 U.S. 46 (1895); Leavenworth, L. & G.R. Co. v. United States, 92 U.S. 733 (1876); Smith v. Stevens, 77 U.S. 321 (1870). Thomas v. Gay, 169 U.S. 264 (1898) (power of Oklahoma territory to impose tax on cattle grazing in Indian reservation); Ward v. Race Horse, 163 U.S. 504 (1896) (state criminal charges against Bannock Indian who killed elk in violation of state law); United States v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883) (civil forfeiture action involving sale of liquor in Indian country); United States v. McBratney, 104 U.S. 621 (1882) (federal criminal trial for crime committed on Ute Indian reservation); The Cherokee Tobacco, 78 U.S. 616 (1870) (civil forfeiture action by federal government against Cherokee Indians). The only exception is United States v. Forty-three Gallons of Whiskey, 108 U.S. 491 (1883). Ward v. Race Horse, 163 U.S. 504 (1896); The Cherokee Tobacco, 78 U.S. 616 (1870). 175 U.S. 1 (1899). Id. at 6–8. Id. at 7.


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Court first decided that the 1863 treaty granted Chief Moose Dung “a complete title in fee simple . . . [which was] alienable by the grantee at his pleasure.”110 Because Moose Dung the younger was Chief Moose Dung’s sole heir, he also had the right to alienate the property. Moreover, the Court, in an exhaustive opinion by Justice Gray, added: The title to the strip of land in controversy, having been granted by the United States to the elder chief Moose Dung by the treaty itself, and having descended, upon his death . . . to his eldest son and successor as chief, Moose Dung the younger, passed by the lease executed by the latter in 1891 to the plaintiffs for the term of that lease; and their rights under that lease could not be devested by any subsequent action of the lessor, or of Congress, or of the Executive Departments. The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself.111

Jones v. Meehan establishes an important limitation on the later-in-time rule: If the United States concludes a treaty that grants a Native American a fee simple title to real property, Congress cannot divest the grantee of his rights to the land by later enacting a statute that purports to vest property rights in some other person. The other three Native American property cases from this period are Smith v. Stevens,112 Leavenworth, Lawrence, & Galveston Railroad Co. v. United States,113 and Frost v. Wenie.114 Although all three cases involved an alleged conflict between an earlier-in-time treaty and a later-in-time statute, the Court, somewhat surprisingly, did not mention the later-in-time rule in any of these cases. Instead, the Court adopted a Charming Betsy approach and construed the statutes in harmony with the Native American treaties, thereby vindicating Indian property rights protected by the treaties. Although none of the four property cases applied the later-in-time rule, the Court did apply it in four of the five regulatory cases. United States v. Forty-Three Gallons of Whiskey115 was the one exception. In an 1863 treaty, the Chippewa Indians ceded land in Minnesota to the United States. The treaty stipulated “that the laws of the United States then in force or that might thereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, should be in full force and effect throughout the country thereby ceded.”116 The United States charged a white defendant with violating 110 111 112

113

114

115 116

Id. at 21. Id. at 32. 77 U.S. 321 (1870). Smith was an ejectment action for land in Kansas. The Court construed an 1860 statute in harmony with an 1825 treaty between the United States and the Kansas Indians, ruling in favor of Victoria Smith, the plaintiff, one of the “half-breed” Indians whom the treaty was designed to protect. See id. at 325–27. 92 U.S. 733 (1876). Leavenworth involved land granted to the Osage Indians in an 1825 treaty. The railroad claimed that an 1863 statute conveyed the Osage land to the State of Kansas, which in turn conveyed the land to the railroad. The Court construed the statute in harmony with the treaty and ruled for the United States, thereby vindicating the Osage Indians’ property interests. See id. at 742–46. 157 U.S. 46 (1895). Frost involved a dispute over title to land in Kansas that was part of the so-called Osage trust lands. The Court construed an 1880 statute in harmony with an 1867 treaty, holding that Frost did not acquire title to the land because the 1880 statute did not apply to lands protected as Osage trust lands under the 1867 treaty. This ruling ensured that the Osage would receive monetary compensation for the sale of the trust lands. 108 U.S. 491 (1883). Id. at 492.

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a federal statute that prohibited the sale of liquor in the subject area. The defendant argued that federal revenue laws granted him a license to “sell spirituous liquors in that country.”117 His proffered interpretation of the revenue laws conflicted with the treaty provision barring liquor sales. The Court invoked the Charming Betsy canon and rejected his argument: “Congress never intended to interfere with the operation of the treaty, or to sanction the sale of liquors in any ceded territory, where an express stipulation provides that they shall not be sold. . . . The laws of congress are always to be construed so as to conform to the provisions of a treaty, if it be possible to do so without violence to their language.”118 The Court’s ruling vindicated Native American treaty rights, albeit in a paternalistic fashion, by restricting the sale of liquor in Indian country. The Court invoked the later-in-time rule in both United States v. McBratney119 and Thomas v. Gay.120 However, in these cases no Native American interests were directly at stake, and at least in McBratney, there was no actual conflict between the statute and the treaty. In Thomas, the key issue was whether Oklahoma’s territorial government could impose taxes on white cattle ranchers who leased land to graze cattle on the Osage Indian reservation.121 The Court held that an 1890 federal statute creating the territory of Oklahoma authorized the territorial government to collect the contested taxes.122 In so holding, the Court failed to address whether the 1890 statute actually conflicted with any treaty rights of the Osage Indians.123 In McBratney, a federal court convicted a white defendant for a crime committed on the Ute Indian Reservation in Colorado. On appeal, he argued that the federal court lacked jurisdiction. The United States contended that, under an 1875 statute admitting Colorado into the Union, the United States retained jurisdiction over the Ute Reservation.124 However, the Court held that the “State of Colorado, by its admission into the Union . . . has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute Reservation.”125 The Court said that the 1875 statute “necessarily repeals the provisions of any prior statute, or of any existing treaty, which are clearly inconsistent therewith.”126 But it also held expressly that there was no conflict between the 1875 statute and the prior treaty with the Ute Indians, because the crime at issue was a white-on-white crime and “that treaty contains no stipulation for the punishment of offences committed by white men against white men.”127 In both Ward v. Race Horse128 and The Cherokee Tobacco,129 the Court held expressly that a federal statute trumped a prior conflicting Indian treaty, to the detriment of the interests of Native American litigants. Of the two cases, The Cherokee Tobacco is easier to reconcile with the Charming Betsy canon. In that case, the United States sued Cherokee 117 118 119 120 121 122 123 124 125 126 127 128 129

Id. at 495. Id. at 496. 104 U.S. 621 (1882). 169 U.S. 264 (1898). Id. at 264–68. Id. at 270–72. See id. at 270–71. McBratney, 104 U.S. at 621–23. Id. at 624. Id. at 623. Id. at 624. 163 U.S. 504 (1896). 78 U.S. 616 (1870).


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Indians for failure to pay taxes on tobacco grown and sold within the reservation. Under an 1866 treaty, the United States agreed that “[e]very Cherokee Indian . . . shall have the right to sell any products of his farm” without paying taxes, provided that those products were grown and sold inside Indian territory.130 However, an 1868 statute stipulated that “the internal revenue laws imposing taxes on . . . tobacco . . . shall be construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not.”131 Although the 1866 treaty clearly exempted the subject tobacco from taxation, the 1868 statute imposed federal taxes on all tobacco “produced anywhere within the exterior boundaries” of the country. Justice Bradley, in dissent, argued that the 1868 statute should be construed in harmony with the 1866 treaty and that doing so would not render the statute a nullity because areas like the Alaska Territory were within the “exterior boundaries” of the United States but were not Indian lands. The majority found Bradley’s interpretation contrary to the statute’s plain meaning. In Ward v. Race Horse,132 Wyoming charged a Bannock Indian with killing elk in the state of Wyoming in violation of state law. The defendant filed a pretrial habeas petition in federal court, arguing that an 1869 treaty protected his right to hunt. He argued that, under the treaty’s express terms, Bannock Tribe members possessed a lasting license to hunt on what were then “unoccupied lands of the United States,” even if such lands were later incorporated into the state of Wyoming. The Court conceded that the treaty, as originally drafted, protected his right to hunt in the subject area.133 However, an 1890 federal statute admitted Wyoming into the Union “on an equal footing with the original states in all respects whatever.”134 Although the 1890 statute did not expressly repeal the 1869 treaty, the Court concluded that the 1890 statute authorized Wyoming to enact laws to prohibit hunting by Native Americans in the treaty-protected hunting districts. The Court said, “The two facts, the privilege conferred [by treaty] and the act of admission, are irreconcilable, in the sense that the two, under no reasonable hypothesis, can be construed as co-existing.”135 Justice Brown, in dissent, argued “that the abrogation of a public treaty ought not to be inferred from doubtful language, but that the intention of congress to repudiate its obligation ought clearly to appear.”136 In his view, nothing in the language or legislative history of the 1890 statute manifested congressional intent to abrogate the Bannock Indians’ treaty-based hunting rights.137 Moreover, he added, a congressional statute enacted shortly after treaty signature, which set up a territorial government for Wyoming, expressly stated “that nothing in this act shall be construed to impair the rights of person or property now pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians.”138 Ward is the only Native American case from this period that appears flatly inconsistent with the Charming Betsy canon. Interestingly, the Court’s rationale in departing from the 130 131 132 133 134 135 136 137 138

Id. at 618. Id. 163 U.S. 504 (1896). Id. at 508–09. Act of July 10, 1890, 26 Stat. 222. Ward, 163 U.S. at 514. Id. at 517 (Brown, J., dissenting). Id. at 517–20. Id. at 517.

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preexisting treaty was grounded in the abstract international law principle of sovereign equality. Wyoming was admitted as a State in 1890 “on an equal footing” with the other States. In the Court’s view, this meant that Wyoming was “endowed with powers and attributes equal in scope to those enjoyed by the states already admitted.”139 Thus, the crucial move in Ward was the notion that Wyoming, as a sovereign State, was naturally endowed with a set of sovereign powers that belong to all sovereign States. As discussed below, the Court’s constitutional and sub-constitutional jurisprudence during this period frequently relied on these concepts of sovereign equality and “inherent” sovereign powers, both of which had origins in international law. 3. Other Cases: Apart from Chinese immigrant cases and cases involving treaties with Native American tribes, we identified three other Supreme Court decisions during this period involving an alleged conflict between a treaty and a statute: Horner v. United States, Whitney v. Robertson, and Edye v. Robertson (Head Money Cases). In all three, the Court’s application of the later-in-time rule was largely rhetorical. In Whitney, an importer sued a U.S. customs collector for refund of import duties paid under protest, claiming that the sugar he imported should have been duty-free under a treaty with San Domingo.140 The Court held that the treaty did not entitle the petitioner to import his sugar duty-free. The treaty “imposed an obligation upon both countries to avoid hostile legislation,” but it did not grant petitioner any “special privileges.”141 After establishing that there was no conflict between the treaty and federal import statutes, the Court added that, if there were a conflict, a later-enacted statute would trump a prior inconsistent treaty.142 In the Head Money Cases,143 plaintiffs were transporting immigrants from Europe to the United States. Acting pursuant to an 1882 federal statute, the collector at the port of New York charged the shipping company a fee of fifty cents for each person brought into the United States.144 The plaintiffs paid under protest and sued for a refund. After rebuffing a constitutional challenge to the 1882 statute,145 the Court addressed the plaintiffs’ argument that the statute “violates provisions contained in numerous treaties of our government with friendly nations.”146 The Court first stated that the 1882 statute did not violate “any of these treaties, on any just construction of them.”147 It added that, if there was a conflict, it would be resolved in favor of the later-in-time statute.148 Thus, as in Whitney, application of the later-in-time rule was entirely consistent with U.S. treaty obligations. Horner v. United States149 involved a habeas petition brought to forestall a federal criminal prosecution. As in the other cases, the Court recited the later-in-time rule.150 139 140 141 142 143 144 145 146 147 148 149 150

Id. at 514. 124 U.S. 190 (1888). Id. at 193. Id. at 193–94. 112 U.S. 580 (1884). Id. at 587–88. Id. at 589–96. Id. at 597. Id. This statement was dicta. The Court said, “[W]e do not place the defense of the act of congress against this objection upon that suggestion.” Id. at 597. The main holding relied on the later-in-time rule. Id. at 597–99. 143 U.S. 570 (1892). Id. at 578 (“The statute is a law equally with the treaty, and, if subsequent and conflicting with the treaty, supersedes the latter.”).


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However, the Court did not decide whether the applicable statute actually conflicted with an earlier treaty. Instead, the Court remanded the case to permit the lower court to address the relationship between a federal criminal statute and a bilateral treaty with Austria.151 In sum, although the Court paid lip service to the later-in-time rule in all three cases, it is doubtful whether any of the cases involved an actual conflict between a federal statute and U.S. treaty obligations.

∗

∗

∗

Between 1861 and 1900, the Court frequently invoked international law – both treaties and the law of nations – as a tool for statutory interpretation. During this period, the Court consistently sought to interpret federal statutes to avoid conflicts with the nation’s international legal obligations. In this respect, Supreme Court jurisprudence was consistent with its jurisprudence in the pre–Civil War era. Yet the Court decided some federal statutory cases during this era in a way that represented a break from the past. Most importantly, the Court decided that Congress could enact legislation superseding U.S. treaty commitments for purposes of domestic law (the “later-in-time rule”). It would be a mistake, however, to infer that the later-intime cases decided in this period signal an abandonment of the Charming Betsy canon or a skeptical attitude toward international law. During this period the Court decided several cases involving an apparent conflict between an earlier treaty and a later statute in which it invoked the Charming Betsy canon and applied the earlier treaty, without even mentioning the later-in-time rule. Moreover, in several cases, the Court invoked the later-in-time rule as an alternative rationale, holding that there was no conflict between the treaty and statute under consideration, while also noting that, if there had been a conflict, it would have been resolved in favor of the later-in-time statute. These cases demonstrate that the Charming Betsy canon retained its vitality during this era and that the Court continued to value adherence to international law. During the period under review, the Court issued only five judgments in federal statutory cases that were manifestly inconsistent with the United States’ international legal obligations: Ward v. Race Horse, Lem Moon Sing, In re Cooper, Chae Chan Ping, and The Cherokee Tobacco. The Court’s decisions in Lem Moon Sing and Chae Chan Ping can be justified on the grounds that Congress made a conscious policy choice to derogate from U.S. treaty obligations. The Court’s decision in The Cherokee Tobacco can be justified on the ground that the statute at issue was so unambiguous that it left no room for application of an interpretive presumption. Ward v. Race Horse and In re Cooper are the only federal statutory cases from this period that appear to be inconsistent with the Charming Betsy presumption. In Ward, the Court intimated that the result was consistent with general principles of international law, notwithstanding specific treaty terms, and in Cooper the Court resorted to a technical ground to avoid validating executive branch action in contravention of the customary law of the sea.

II. International Law and Constitutional Interpretation From 1861 to 1900, the Court regularly invoked international law as a supplemental aid in interpreting the Constitution. More surprisingly, the Court decided several cases during this period in which international law seemed to displace the text of the U.S. 151

Id. at 577–78.

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Constitution, original intent or meanings, or prior precedents in constitutional analysis. In other words, the Court resorted to international law as the primary rule of decision in cases that arguably could or should have been decided principally by reference to constitutional text or other purely domestic means of constitutional adjudication. Moreover, the Court often took a very liberal perspective on what counted as a rule of international law – for example, by deducing a rule of decision from an abstract principle of international law or by citing relevant quotations from well-known treatises without justifying these principles or quotations by reference to treaties or custom. This frequent resort to international law as an interpretive tool may seem unsurprising with respect to constitutional decisions in foreign affairs or war powers, but the Court also invoked international law in deciding constitutional cases relating to wholly domestic matters. This part proceeds in four sections. The first addresses war powers. The second discusses the Define and Punish Clause. The third shows how the Court used the international law principle of territoriality to help resolve several distinct constitutional questions. The final section analyzes the Court’s reliance on the international law principle of “inherent sovereign powers” to uphold the validity of various types of federal legislation.

A. The Laws of War and the Constitution The crisis of the Civil War intensified debate about the meaning of the U.S. Constitution. It is, accordingly, no surprise that the first great decision of the 1861–1900 period involving international law as a tool in constitutional interpretation was the Prize Cases,152 decided in 1863 at the height of the Civil War. Within weeks of the April 12, 1861, Confederate attack on Fort Sumter, South Carolina, President Abraham Lincoln declared a blockade of seceded and soon-to-secede southern states. The operative proclamations stated that he “deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States and of the law of nations in such case provided.”153 Congress was not in session at the time, but on July 13, it passed a statute authorizing the President to prohibit future commerce from and to ports in insurrectionist states.154 Then on August 6, 1861, it passed a provision stating that “all the acts, proclamations, and orders of the President respecting the army and navy of the United States . . . are hereby approved and in all respects legalized.”155 The Prize Cases concerned the condemnation of four ships and cargoes owned by foreign neutral citizens and U.S. citizens resident in Virginia in the short period between Lincoln’s proclamations and Congress’s July 13 and August 6 enactments.156 The Court affirmed the condemnations in a 5–4 decision; Justice Robert Grier penned the majority opinion. The cases posed an important constitutional question about the President’s unilateral war powers under the Commander-in-Chief Clause. But Grier’s opinion tellingly framed the key issue in international law terms: “Had the President a 152 153

154 155 156

The Brig Amy Warwick (The Prize Cases), 67 U.S. 635 (1863). Proclamation No. 4, 12 Stat. app. 1258 (Apr. 19, 1861) (South Carolina, Georgia, Alabama, Florida, Louisiana, Mississippi, and Texas); Proclamation No. 5, 12 Stat. app. 1259 (Apr. 27, 1861) (North Carolina, Virginia). Act of July 13, 1861, ch. 3, §§ 5–6, 12 Stat. 255, 257. Act of Aug. 6, 1861, ch. 63, § 3, 12 Stat. 326, 326. See Thomas H. Lee & Michael D. Ramsey, The Story of the Prize Cases: Executive Action and Judicial Review in Wartime, in Presidential Power Stories 53–92 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009).


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right to institute a blockade of ports in possession of persons in armed rebellion against the Government, on the principles of international law, as known and acknowledged among civilized States?”157 More specifically, in the majority’s view, the question whether the President had the constitutional power to impose a blockade on foreign neutrals turned on whether a “state of war” existed: The right of prize and capture has its origins in the “jus belli,” and is governed and adjudged under the law of nations. To legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion.158

As Justice Samuel Nelson decried in dissent, the majority opinion, by framing the case in international law terms, discounted the constitutional text that grants Congress the power to “declare War.”159 [T]he President does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war. . . . [T]his power belongs exclusively to the Congress . . . , and, consequently, the President had no power to set on foot a blockade under the law of nations, and that the capture of the vessel and cargo in this case, and in all cases before us in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemies’ property, are illegal and void.160

In other words, for the dissent, the Constitution mandated a separation of powers rule that required congressional acquiescence to move from the state of peace to the state of war. The President could not do it alone based on what was or was not permissible under the laws of war. Moreover, until Congress declared or acknowledged the existence of a state of war, the blockade was not permissible “within the meaning of the law of nations.”161 Justice Grier and the majority agreed that “[b]y the Constitution, Congress alone has the power to declare a national or foreign war.”162 Similarly, the President “has no power to initiate or declare a war either against a foreign nation or a domestic State.”163 However, Justice Grier added, “If a war be made by invasion of a foreign nation” or by “States organized in rebellion,” then “the President is not only authorized but bound to resist force by force . . . without waiting for any special legislative authority.”164 Thus, according to Grier, whether a “state of war” existed was a factual determination, not a legal one, and the President’s determination on the question was entitled to deference. To be sure, “[i]f it were necessary to the technical existence of a war, that it should have a legislative sanction,” in Grier’s words, “we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting 157 158 159 160 161 162 163 164

67 U.S. at 665. Id. at 666. U.S. Const. art. I, § 8, cl. 11. The Prize Cases, 67 U.S. at 698–99 (Nelson, J., dissenting). Id. at 698 (Nelson, J., dissenting). Id. at 668. Id. Id.

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laws to enable the Government to prosecute the war with vigor and efficiency.”165 Grier also suggested that decades-old statutes from 1795 and 1807 authorized the President “to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.”166 The Prize Cases also raised the question whether the international laws of war empowered the government to seize ships and cargoes belonging to U.S. citizens resident in the southern states who asserted rights under the Fifth Amendment. The most compelling constitutional claims were lodged by U.S. citizens resident in Virginia who did not actively participate in hostilities and in fact claimed loyalty to the Union and whose property was captured before Virginia’s citizens voted to approve the state legislature’s petition to secede.167 The government claimed that the captures were authorized under the enemy property doctrine of the international laws of war. This doctrine acknowledges that a belligerent nation, in time of war, may seize or destroy property of military value to the enemy out of military necessity without an obligation to make reparations.168 The doctrine is still a feature of the international laws of war and is routinely applied to destruction of property located in enemy territory. But the doctrine was not formulated with an eye to civil war, and it seemed at least plausible to assert that the U.S. Constitution operated to circumscribe international law in cases involving the seizure of cargoes belonging to purportedly loyal U.S. citizens. The Court, however, rejected the appellants’ Fifth Amendment argument. It reiterated that the seizures occurred during a “state of war,” which afforded the United States the rights of belligerents under the laws of war, and it concluded that the application of the doctrine of enemy property did not turn on “the personal allegiance of the owner” but rather on the fact that the property “may be used to increase the revenues of the hostile power.”169 Granting that this is true, it is still surprising that the Court did not consider that U.S. citizens resident in Virginia whose property was seized on international waters (not within enemy territory) and possibly before Virginia had seceded as a legal matter might have had colorable Fifth Amendment claims. The peculiarity is compounded by the fact that the Court reversed the seizure of identical cargoes owned by U.S. citizens resident in New York.170 If the pleadings of the Virginia litigants were to be believed, they would presumably not have repatriated to Virginia any future revenue from the 165 166 167

168

169 170

Id. at 670. Id. at 668. The Schooner Crenshaw was captured at Hampton Roads on May 17, 1861 – nearly a month after Virginia ratified a temporary union with the Confederacy, but six days before the State formally seceded. See id. at 680. However, the vessel had set sail from Richmond with “a clearance signed” by the “Collector of the Port of Richmond, of the Confederate States of America,” and the vessel’s owners conceded to the Court that Virginia was in a state of insurrection at that time. Id. The timing of the seizure did present an issue with respect to “thirty tierces of tobacco strips” on board that had been purchased by New York residents “before the war broke out.” Id. at 682. The Court concluded that this transaction did not qualify as “illegal traffic” because the tobacco had been “bought and paid for before hostilities commenced” and restored the property to its northern owners. Id. See 2 William Winthrop, Military Law and Precedents 779–81 (2d ed. 1895, reprinted 2000). Describing the acts of Congress authorizing seizure of enemy property, Winthrop stated without comment that Congress “is empowered by the Constitution to ‘make rules concerning captures on land and water.’” Id. at 781. Id. at 674. Id. at 682.


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liquidation of their cargoes in northern prize courts, making their case indistinguishable from that of the New Yorkers. The Prize Cases’ view that international law could authorize governmental seizures of the property of U.S. citizens in a state of war, including property that would be subject to greater constitutional safeguards in peacetime, was underscored in Miller v. United States.171 Miller, a citizen of Virginia, sued to recover shares that he owned in two Michigan railroad companies. The shares had been confiscated during the Civil War and sold pursuant to statutes Congress enacted authorizing confiscation of enemy property. Miller argued after the war that the statutes were criminal in nature and that he had accordingly been denied his Fifth and Sixth Amendment rights to grand jury indictment and petit jury conviction, respectively.172 The Court, per Justice William Strong, characterized the constitutional question as whether the confiscation statutes were enacted pursuant to Congress’s war powers or its ordinary “municipal” power to punish crimes: “[I]f the statutes were not enacted under the municipal power of Congress to legislate for the punishment of crimes against the sovereignty of the United States, if, on the contrary, they are an exercise of the war powers of the government, it is clear they are not affected by the restrictions imposed by the Fifth and Sixth Amendments.”173 The Court held that the statutes were not criminal, but an exercise of Congress’s war powers.174 In so holding, the Court cited the Prize Cases for the proposition that the United States could invoke its belligerent rights under the international laws of war to justify seizure of “enemy property” while continuing to invoke sovereign rights over the rebellious territory.175 For, in the Court’s view, “[i]t would be absurd to hold that, while in a foreign war enemy’s property may be captured and confiscated as a means of bringing the struggle to a successful completion, in a civil war of equal dimensions, . . . the right to confiscate the property that may strengthen such belligerent does not exist.”176 The Court did not pause to consider whether the confiscation of stock in this instance could be justified by the military necessity principle at the core of enemy property doctrine. Justice Field argued in dissent that Miller was entitled to Fifth and Sixth Amendment protections because the federal statutes authorizing confiscation of his property were criminal statutes.177 Field also maintained that, when enacting legislation governing the conduct of war, Congress could not legislate contrary to the law of nations.178 The majority did not disagree with Justice Field’s claim that Congress must exercise its war powers in conformity with the law of nations. Nor did the Court give evidence or imply that the laws of war expressly authorized the confiscation of stock in a home corporation by a U.S. citizen resident in rebel territory. Instead, the majority cited the Prize Cases for the proposition that “[c]learly. . . . citizens of the lawful government, [who] are residents of the territory under the power or control of the party resisting that government . . . must 171 172 173 174 175 176 177 178

78 U.S. 268 (1870). Id. at 304. Id. at 304–05; see Hamilton, supra note 57, at 150–53. Miller, 78 U.S. at 307–10. Lawyers defended the Confederacy’s Sequestration Act, which authorized the seizure of enemy aliens’ property, in part on these same international law foundations. See Weitz, supra note 57, at 105–06. Id. at 306–07. Id. at 318–22 (Field, J., dissenting). Id. at 314–16 (Field, J., dissenting).

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be considered” enemies.179 Then Justice Strong made an interesting move: he noted that the States had enacted many such statutes confiscating the property of “domestic enemies” (i.e., Loyalists) during the Revolutionary War, but that the U.S. Constitution did not address such laws.180 “It is incredible that if such confiscations had not been contemplated as possible and legitimate, they would not have been expressly prohibited or at least restricted.”181 Nowhere in this crucial section does the Court give any direct citation to an international law treatise or other source, notwithstanding the formal reliance on international law to justify the governmental confiscations.182 While the Court relied on contestable interpretations of the international laws of war regarding “enemy property,” it did draw the line with respect to the criminal jury, search, and warrant rights of a U.S. citizen resident in the Union prosecuted for conspiring to support the rebellion in alleged violation of the laws of war. In Ex parte Milligan,183 a military commission convicted the petitioner, a U.S. civilian citizen resident in Indiana, of conspiring against the United States, aiding and abetting the enemy, inciting insurrection, disloyal practices, and violating the laws of war.184 The United States argued that the military commission had jurisdiction to try, sentence, and ultimately execute Milligan for these crimes under the “laws and usages of war.”185 The Court, however, opined that “[i]t can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.”186 In other words, the Court explicitly recognized that international law did not apply in this case at all and could not be used to justify the use of military commissions to try U.S. citizen civilians in peaceful territory where the courts remained open for business. Chief Justice Salmon Chase’s opinion concurring in the judgment (joined by three other Justices) also emphasized the inapplicability of the laws of war in this setting. Chase suggested that Congress could authorize military commissions to try U.S. citizens within U.S. territory, but that the source of such power was the U.S. Constitution alone. In Chase’s words, “We have thus far said little of martial law, nor do we propose to say much. What we have already said sufficiently indicates our opinion that there is no law for the government of the citizens, the armies or the navy of the United States, within American jurisdiction, which is not contained in or derived from the Constitution.”187 The analysis of these three Supreme Court decisions suggests some unifying principles. First, the cases demonstrate that the Court viewed the contemporary international laws of war as a body of law that enhanced (and also could potentially limit) governmental powers in wartime. Second, they foreshadow the importance of territorial line-drawing in determining whether U.S. persons are entitled to constitutional rights: international 179 180 181 182

183 184 185 186 187

Id. at 311–12. Id. at 312. Id. at 313. During congressional debate on the Second Confiscation Act, conservatives cited treatises on international law to support their assertion that private property on land was generally exempt from confiscation. See Hamilton, supra note 57, at 52–53. 71 U.S. 2 (1866). Id. at 6 (statement of the case); see also Curtis A. Bradley, The Story of Ex Parte Milligan, in Presidential Power Stories 93, 105–09 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009). Milligan, 71 U.S. at 121. Id. Id. at 141 (Chase, C.J., concurring in the judgment) (emphasis added).


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law generally fixed the rights of U.S. persons residing in enemy territory, whereas U.S. constitutional law was the primary body of law for citizens residing in friendly, peaceful territory.188

B. Construing the “Define and Punish” Power United States v. Arjona189 involved the constitutionality of federal statutes making it a crime to counterfeit foreign bank notes in the United States. The petitioner argued that Congress did not have constitutional power to criminalize the printing of counterfeit securities purportedly issued by a foreign bank. The Counterfeit Clause provided only that Congress shall have the power to “provide for the Punishment of counterfeiting the Securities and current Coin of the United States.”190 Nor, Arjona asserted, was making fake foreign securities an “Offense[] against the Law of Nations” sufficient to justify the statutes under Congress’s power to “define and punish”191 such offenses, especially because Congress did not explicitly invoke this power nor purport to define a law of nations offense as opposed to a purely domestic offense. The petitioner’s arguments under the Define and Punish Clause seemed plausible on their face. There was no treaty provision on point. There was no specific rule under the law of nations prohibiting such counterfeiting akin to the proscriptions on piracy, attacks on foreign ambassadors, or violations of safe conducts. Chief Justice Morrison Waite192 affirmed the convictions in a brief, unanimous opinion. He started, as one might expect, by enumerating the relevant congressional powers in Article I. But he did so not to justify the exercise of congressional power in this instance, but rather to conclude, “Thus, all official intercourse between a state and foreign nations is prevented, and exclusive authority for that purpose given to the United States.”193 In other words, the Article I discussion was used to confirm that the United States – and not the States – had exclusive power over foreign relations. He continued, “The national government is in this way made responsible to foreign nations for all violations by the United States of their international obligations, and because of this Congress is expressly authorized to ‘define and punish . . . offenses against the law of nations.’”194 That of course begged the constitutional question whether the statutes at issue represented a valid exercise of the “define and punish” power. To answer that question, Waite relied exclusively on one book published in 1758 – Emmerich de Vattel’s Law of Nations.195 He began by quoting Vattel’s remark that “it is easy to conclude that, if one nation counterfeits the money of another, or if she allows and protects false coiners who 188

189 190 191 192

193 194 195

In battleground border states like Missouri and Kentucky under contested or intermittent Union control (unlike Virginia at the relevant time in the Prize Cases and Miller or Indiana in Milligan), the question whether to apply international or U.S. law was not as straightforward as the Court implied in the aforementioned cases. 120 U.S. 479 (1887). U.S. Const. art. I, § 8, cl. 6. Id., cl. 10. Waite was an expert in international law: he represented the United States in the Alabama claims arbitrations with the United Kingdom, a role that brought him to the attention of the Grant administration as a replacement for Salmon Chase. Arjona, 120 U.S. at 483. Id. See Thomas H. Lee, Making Sense of the Eleventh Amendment: International Law and State Sovereignty, 96 Nw. U. L. Rev. 1027, 1061–67 (2002) (discussing Vattel’s important influence on U.S. Supreme Court jurisprudence).

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presume to do it, she does that nation an injury.”196 But Vattel’s axiom did not necessarily justify the conclusion that counterfeiting the notes and bills of a bank incorporated under foreign laws – as opposed to currency issued directly by the foreign nation – was an offense against the law of nations. To cover the logic gap, Waite pointed out that Vattel was writing at a time when “money was the chief thing of this kind that needed protection” but that Vattel himself had added, “There is another custom more modern, and of no less use to commerce than the establishment of coin – namely exchange, or the traffic of bankers, by means of which a merchant remits immense sums from one end of the world to the other.”197 Waite then quoted Vattel’s conclusion that sovereigns are “obliged to support this custom . . . by good laws, in which every merchant, whether citizen or foreigner may find security.”198 In his own words, Waite continued, “[I]t is easy to see that the same principles that . . . in the opinion of so eminent a publicist as Vattel . . . could be applied to the foreign exchange of bankers may, with just propriety, be extended to the protection of this more recent custom among bankers of dealing in foreign securities.”199 He added, “No nation can be more interested in this question than the United States,” given the sophistication and scale of U.S. financial instruments at the time. And then he invoked the importance of reciprocity: “[I]nternational obligations are, of necessity, reciprocal in their nature. . . . If such securities can be counterfeited here with impunity, our own people may be made to suffer by a wrong done which affects a business that has been expressly placed by the Constitution under the protection of the government of the United States.”200 It is interesting to note the Court’s methodology in determining the content of the law of nations in Arjona. Rather than consulting applicable treaties, the practices of other nations, or several secondary sources, the Court cited a single treatise by a Swiss jurist written 129 years before the case was heard. Moreover, the treatise did not address the specific issue: the Court had to extrapolate an underlying principle from Vattel’s book to craft a rule of decision. This implies that the Court presumed the stability of international law over the relevant decades. It also implies that the Court believed that the content of international law was not limited to specific rules, but could rationally be derived from general principles designed to promote peaceful international relations among sovereign states.201

C. International Law, the Constitution, and the Territoriality Principle In the late nineteenth century, the Court invoked the international law principle of territoriality to help resolve a wide range of constitutional issues. For example, in In re Ross202 the Court applied the territoriality principle to deny constitutional protections to individuals outside the territorial boundaries of the United States. Conversely, in 196 197 198 199 200 201 202

120 U.S. at 484. Id. Id. at 485. Id. at 485–86. Id. at 487. For further discussion of how the Court determined the content of customary international law, see Chapter 3, pp. 103–12. 140 U.S. 453 (1891).


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United States v. Wong Kim Ark203 and Wong Wing v. United States204 the Court relied on territoriality to justify the extension of constitutional protections within the United States to individuals whom the government viewed as “outsiders.” Finally, in Pennoyer v. Neff 205 the Court relied on the international law principle of territoriality to limit the jurisdictional reach of state courts. We have already discussed Ross’s holding validating the extraterritorial reach of a statute extending U.S. consular jurisdiction to a crime by a British subject on a U.S.flagged ship in Japanese waters.206 Of course, Ross is more (in)famous for its related holding that the U.S. Constitution did not apply extraterritorially. Specifically, Ross alleged denial of his constitutional rights to grand jury indictment and petit jury conviction that would have attached if the federal criminal proceeding had been held within the United States.207 Justice Field’s opinion for the majority featured expansive language to the effect that the Constitution’s protection applied only within U.S. territory: By the constitution a government is ordained and established ‘for the United States of America,’ and not for countries outside of their limits. . . . The constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree; the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered, for many purposes, constructively as territory of the United States; yet persons on board of such vessels . . . cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States.208

The saving grace of such inequity from an individual rights perspective, according to Field, was that in most instances the U.S. criminal defendant abroad would be protected by the extraterritorial jurisdiction of the U.S. consul from a more savage prosecution by the host state: “While, therefore, in one aspect the American accused of crime committed in those countries is deprived of the guaranties of the constitution against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive, and sometimes accompanied with extreme cruelty and torture.”209 The Court specifically found that the consular treaty with Japan “secures a regular and fair trial to Americans committing offenses within that empire.”210 Ross is commonly viewed as an anachronistic decision standing for the proposition that the Constitution does not apply extraterritorially. What is often forgotten about Ross, however, is that Field’s opinion was premised on two assumptions. First, he relied on the principle of territorial exclusivity to support his conclusion that international law prohibited the United States from extending its laws, including its constitutional law, 203 204 205 206 207 208 209 210

169 U.S. 649 (1898). 163 U.S. 228 (1896). 95 U.S. 714 (1878). See supra pp. 128–29. See Ross, 140 U.S. at 463–64. Id. at 464. Id. at 465. Id. at 468.

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into the territory of another sovereign state absent consent. Second, Field emphasized that, even though Ross was not entitled to the full range of U.S. constitutional rights, international law – in the form of the consular treaty with Japan – ensured that U.S. defendants would receive sufficient criminal procedural rights to guarantee them a fair trial.211 It is instructive to compare Ross with the Court’s decision in Wong Wing.212 The constitutional rights at issue in that case – the Fifth and Sixth Amendment rights to grand jury indictment and petit jury trial – were also at issue in Ross. Ross acknowledged limits on these rights in foreign lands. In contrast, Wong Wing held that noncitizens within U.S. territory had a constitutional right to a jury trial before they could be subjected to criminal punishment.213 The contrast between Ross and Wong Wing demonstrates that, in the late nineteenth century, the Court relied heavily on the international law principle of territoriality, even more so than nationality, to determine the scope of rights protected under the Fifth and Sixth Amendments. The Court also invoked the territoriality principle to resolve disputes about who qualifies as a U.S. citizen. Justice Gray wrote the majority opinion in United States v. Wong Kim Ark,214 in which the key issue was whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.215

That clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”216 From a textual standpoint, the key question in Wong Kim Ark was how to interpret the Fourteenth Amendment’s reference to “subject to the jurisdiction thereof.” Were the words to be construed in a strongly territorial sense? If so, anyone born in the United States would be “subject to its jurisdiction,” with the exception of the children of foreign diplomats and Native Americans who were physically within the United States but exempt from U.S. jurisdiction under treaties or customary international law. Or could the words be interpreted more broadly to refer to political allegiance, in which case a child born of subjects of the Chinese emperor living in the United States might not be “subject to the jurisdiction” of the United States? The Court decided 7–2 that Wong was a citizen of the United States because he was born in the United States and his parents were not here in a diplomatic capacity or as foreign soldiers in hostile occupation. Because he was entitled to citizenship under the Fourteenth Amendment, the government could not prevent him from entering the country. 211 212 213 214 215 216

Id. at 468–70. 163 U.S. 228 (1896). Id. at 237–38. 169 U.S. 649 (1898). Id. at 653. U.S. Const. amend XIV.


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Justice Gray, in a characteristically scholarly and far-ranging opinion, presented a detailed analysis of the original understanding of the Fourteenth Amendment’s drafters.217 Before doing so, however, he traced the historical origins of citizenship rules in England and the United States218 and devoted roughly ten pages of his fifty-page opinion to an analysis of international law.219 This analysis led him to conclude that there was “little ground for the theory that at the time of the adoption of the fourteenth amendment of the constitution of the United States there was any settled and definite rule of international law . . . inconsistent with the ancient rule of citizenship by birth within the dominion.”220 In short, international law neither required nor prohibited a rule granting citizenship to the children of noncitizens born within national territory. Thus, in construing the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment’s text, the Court had to decide whether to give more weight to the territoriality principle or the nationality principle, both of which were established grounds for jurisdiction under international law. As with the Fifth and Sixth Amendment cases discussed earlier, the Court decided that territoriality took precedence. Hence, apart from children of diplomats, persons born on U.S. territory whose parents were foreign nationals were entitled to U.S. citizenship. In addition to invoking the international law principle of territoriality to help resolve questions about U.S. citizenship and the extraterritorial application of the Fifth and Sixth Amendments, the Court also relied on the same territoriality principle to regulate the overlapping jurisdiction of state courts. The question in Pennoyer v. Neff 221 was whether an Oregon state court could enforce an in personam judgment against a citizen of another State where the plaintiff did not serve process on the defendant in Oregon. The Court held that it could not: “The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum . . . [an] illegitimate assumption of power.” The Court described this as “a principle of general, if not universal, law.”222 As the Court elaborated, the principle in question was really two well established principles of public law respecting the jurisdiction of an independent State over persons and property. . . . One of these principles is that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. . . . The other principle of public law referred to follows from the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its territory.223

The Court cited two authorities in support of these principles that illuminated their international law pedigree: Story’s treatise on conflict of laws and Wheaton’s treatise on international law. Justice Field, who wrote the Court’s opinion, could have stopped there, because the aforementioned principles disposed of the case. However, he wanted to link these 217 218 219 220 221 222 223

Wong Kim Ark, 169 U.S. at 675–94. Id. at 655–66. Id. at 666–75. Id. at 667. 95 U.S. 714 (1878). Id. at 720. Id. at 722.

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principles to the Constitution.224 Hence, he added the following dictum: “Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.”225 Technically, the Fourteenth Amendment Due Process Clause did not apply to Pennoyer because the Oregon state court issued its judgment before that amendment was ratified. Nevertheless, later nineteenth-century Supreme Court decisions cited Pennoyer for the proposition that “[n]o judgment of a court is due process of law, if rendered without jurisdiction in the court.”226 Thus, the Court’s decision in Pennoyer transformed an international law rule about the territorial limits of sovereign power into a constitutional rule rooted in the Due Process Clause – a clause that, on its face, has no apparent relation to principles of territorial sovereignty.

D. International Law and Inherent Powers The years 1861 to 1900 witnessed a succession of Supreme Court decisions justifying the constitutionality of congressional legislation by reference to “inherent sovereign powers” under international law, rather than to constitutional text, original intent, or prior precedents.227 The conceptual link between late-nineteenth-century international law and the inherent powers doctrine was the idea that there is one – and only one – sovereign with a consensus quiver of powers to act within its territory and on its behalf outside of that territory. In retrospect, it seems that most, perhaps all, of the federal legislation that the Court justified by reference to inherent powers could have been justified by reference to one or more of Congress’s Article I powers. Regardless, the most interesting point for present purposes is that the Court did not believe it necessary to anchor federal legislative powers in the text of Article I. Although many inherent powers cases involved international relations matters such as immigration, where resort to international law seems more natural, the Court sometimes referred to international law in wholly domestic cases, such as exercises of eminent domain to procure land for railroads and the use of paper currency. The Court began to extrapolate common characteristics of inward sovereignty as a corollary to the vision of international law as a system of rules regulating autonomous political units. In other words, the Court proceeded from the idea that all sovereigns possess the same set of powers and rights in foreign relations to the concept that there is a similar set of domestic powers inherent in what it means to be a sovereign state. The first salvo was the Legal Tender Cases.228 Article I gives Congress the power to “coin Money” and to “regulate the value thereof.”229 James Madison’s notes from 224

225 226 227 228 229

Professor Perdue contends that Justice Field, “the ‘prophet’ of substantive due process, seized on Pennoyer as a vehicle to entrench the due process clause of the fourteenth amendment as a barrier to state action inconsistent with natural law rights.” Wendy Collins Perdue, Sin, Scandal and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered, 62 Wash. L. Rev. 479, 480 (1987). Pennoyer, 95 U.S. at 733. Scott v. McNeal, 154 U.S. 34, 46 (1894). See Cleveland, supra note 92, at 10–13, 250–53. 79 U.S. 457 (1871). U.S. Const. art. I, § 8, cl. 5.


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the Constitutional Convention indicated that a broader provision to encompass paper currency was not intended. Nevertheless, during the Civil War the United States issued paper currency, known as “greenbacks,” because of a shortage of gold and silver coins to cover its fiscal needs. In Hepburn v. Griswold,230 the Court held that paper currency unconstitutional by a 4–3 vote. Just one year later, however, in the Legal Tender Cases, a bare 5–4 majority of the Court upheld the constitutionality of paper currency. The majority relied principally on the Necessary and Proper Clause. But Justice Bradley, in an influential concurring opinion, observed that it seems to be a self-evident proposition that [the federal government] is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such and as being essential to the exercise of its functions. If this proposition be not true, it certainly is true that the government of the United States has express authority, in the clause last quoted, to make all such laws (usually regarded as inherent and implied) as may be necessary and proper for carrying on the government as constituted and vindicating its authority and existence.231

Coming in 1871, the decision in the Legal Tender Cases was one of the Court’s earliest manifestations of inherent power reasoning. Justice Gray endorsed a similar rationale a decade later in Juilliard v. Greenman,232 where he said that the federal government’s power to issue bills that are legal tender for the payment of private debts was “a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the Constitution.”233 It had subsequently been entrenched as “one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution.”234 Under this logic, Congress could exercise any legislative power “universally understood to belong to sovereignty,” unless the Constitution explicitly withheld that power from Congress. This inherent powers doctrine effectively inverts the principle that Congress exercises only limited and enumerated powers. United States v. Jones235 involved the question whether the Fifth Amendment Takings Clause permitted the federal government to delegate to state governmental authorities the task of calculating “Just Compensation” for property taken by federal eminent domain power. Justice Field, writing for the Court, said that it could: The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty . . . and . . . requires no constitutional recognition. The provision found in the Fifth Amendment to the federal Constitution and in the constitutions of the several states for just compensation for the property taken is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government – its right of eminent domain, which 230 231 232 233 234 235

75 U.S. 603 (1870). 79 U.S. at 556. 110 U.S. 421 (1884). Id. at 447. Id. at 450. 109 U.S. 513 (1883).

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Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country – cannot be transferred to a state any more than its other sovereign attributes, and that when the use to which the property taken is applied is public, the propriety or expediency of the appropriation cannot be called in question by any authority. But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property.236

This passage from Jones echoed an earlier statement in Boom Co. v. Patterson,237 where Justice Field, writing for the Court, stated: “The right of eminent domain – that is, the right to take private property for public uses – appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.”238 Clearly, Field and his contemporaries did not feel the need to justify federal legislation by reference to specific congressional powers enumerated in Article I. From their perspective, federal legislation was valid if Congress exercised a power that was an “incident of sovereignty” belonging to “every independent government.” Moreover, the Justices looked to international law – for example, to Vattel’s treatise in Jones – to determine which governmental powers were inherent attributes of sovereignty. Chae Chan Ping v. United States239 was the first in a long line of immigration cases upholding Congress’s power to exclude aliens by invoking the territorial autonomy of the sovereign state under international law. The case involved a Chinese resident alien who departed the United States with official authorization to return. While he was at sea on his way back to the United States, Congress voided his reentry documents by enacting the Exclusion Acts. Fong Yue Ting v. United States240 involved a challenge to a federal statute requiring Chinese resident aliens (but not aliens of other racial groups) to register on pain of deportation. Nishimura Ekiu v. United States241 concerned a Japanese woman detained by immigration authorities and subject to deportation under the Exclusion Acts. All three opinions invoked the principle of territorial autonomy to support the validity of federal immigration legislation. Justice Field in Chae Chan Ping wrote that the proposition that “Congress . . . can exclude aliens from its territory” was “not open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.”242 Justice Gray in Nishimura explained: It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of international relations.243 236 237 238 239 240 241 242 243

Id. at 519. 98 U.S. 403 (1879). Id. at 406. 130 U.S. 581 (1889). 149 U.S. 698 (1893). 142 U.S. 651 (1892). Chae Chan Ping, 130 U.S. at 603–04. Nishimura Ekiu, 142 U.S. at 659.


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And in Fong Yue Ting, Gray recycled both Field’s statement in Chae Chan Ping and his own language in Nishimura: “The general principles of public law which lie at the foundation of these cases are clearly established by previous judgments of this Court, and by the authorities therein referred to.”244 In all three cases, the Court invoked international law to support the validity of a federal statute that excluded or discriminated against aliens, and passages in these opinions suggest that individual Justices were influenced by racial bias.245 However, it is important to note that the Court also imposed significant constraints on Congress’s “inherent sovereign power” to regulate immigration. In Chew Heong v. United States246 and United States v. Gue Lim,247 the Court adopted generous interpretations of federal statutes to respect bilateral treaties protecting Chinese immigrants’ rights.248 And in United States v. Wong Kim Ark,249 the Court construed the Fourteenth Amendment broadly to grant citizenship to children of Chinese immigrants.250 Moreover, in Wong Wing v. United States, the Court held that the Fifth and Sixth Amendments meant that Congress could not “promote its policy in respect to Chinese persons by adding to its provisions for their exclusion and expulsion punishment by imprisonment at hard labor, to be inflicted by the judgment of any justice, judge, or commissioner of the United States, without a trial by jury.”251 Wong Wing is significant because it drew a sharp line between deportation and criminal punishment, however minor – Wong Wing’s case involved sixty days’ hard labor. Although the powers inherent in sovereignty gave Congress broad leeway to exclude or deport “undesirable” immigrants, in criminal proceedings those immigrants (while within the United States) were entitled to the same procedural safeguards as U.S. citizens. Justice Field, who wrote the Court’s opinion in Chae Chan Ping validating Congress’s power to exclude the Chinese, wrote a stirring opinion (concurring in part and dissenting in part) underscoring their criminal rights within U.S. territory: “The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar. . . . It is to be hoped that the poor Chinamen now before us seeking relief from cruel oppression will not find their appeal to our republican institutions and laws a vain and idle proceeding.”252 Field’s position in the two cases is not surprising – more than any other Justice of the time, he believed in strict application of the territoriality principle he articulated in Pennoyer v. Neff.

III. International Law and Sovereign Immunity Doctrines Part III discusses the connection between international law and three distinct but related sovereign immunity doctrines: foreign sovereign immunity, state sovereign immunity, and federal sovereign immunity. Sovereign immunity is the concept that a sovereign 244 245 246 247 248 249 250 251 252

Fong Yue Ting, 149 U.S. at 704–05. E.g., Chae Chan Ping, 130 U.S. at 606 (referring to the “vast hordes of [Chinese] people crowding in upon us”). 112 U.S. 536 (1884). 176 U.S. 459 (1900). See supra p. 134. 169 U.S. 649 (1898). See supra pp. 150–51. 163 U.S. 228, 235 (1896). Id. at 242–43.

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state cannot be sued without its consent. In the years 1861 to 1900, the Supreme Court’s sovereign immunity jurisprudence exhibited a reliance on inherent, non-textual principles of sovereign prerogatives rooted in international law that mirrored the growth of the inherent powers doctrine discussed in Part II.D. Commentators generally agree that the doctrine of foreign sovereign immunity is rooted in international law. It is less well known, but equally true, that the Eleventh Amendment – which provides the textual, constitutional hook for state sovereign immunity doctrine – is also rooted in international law.253 Indeed, the international law principle of sovereign equality underlies both the Eleventh Amendment and foreign sovereign immunity. Because sovereign states are equals, individual subjects and citizens of foreign states have no right to sue a sovereign state. Recognizing such suits would imply an equality between the sovereign sued and the foreign individual (a fraction of his or her own state) who is suing.254 Both foreign sovereign immunity and the Eleventh Amendment implicate external sovereign immunity – the principle that the subjects or citizens of one sovereign cannot sue a different sovereign. In contrast, federal sovereign immunity involves internal sovereign immunity – the principle that citizens cannot sue their own sovereign. Although international law provides little or no support for the principle of internal sovereign immunity,255 the Court in United States v. Lee,256 decided in 1882, invoked international law to support the proposition that U.S. citizens cannot sue the United States without its consent. Eight years later, in Hans v. Louisiana,257 the Court deployed the same principle of internal sovereign immunity to extend state sovereign immunity beyond the Eleventh Amendment’s words, thus decoupling state sovereign immunity from specific constitutional text and from the doctrine’s international law roots.

A. Foreign Sovereign Immunity The Supreme Court has long recognized foreign sovereign immunity as a general exception to the international law principle granting a sovereign “exclusive and absolute” jurisdiction “within its own territory.”258 As discussed in Chapter 1,259 the U.S. Supreme Court first endorsed foreign sovereign immunity in Chief Justice John Marshall’s 1812 opinion in The Schooner Exchange v. McFaddon.260 From 1861 to 1900, U.S. diplomats routinely addressed issues involving sovereign immunity in their correspondence with representatives of other nations.261 In particular, there is an extensive record of diplomacy involving the immunity enjoyed by foreign warships in U.S. ports (routinely viewed since The Schooner Exchange as implicating the “power” and “dignity” of a sovereign262 )

253 254 255 256 257 258 259 260 261 262

See Lee, supra note 195, at 1027. Id. at 1032–33. Id. at 1037–38. 106 U.S. 196 (1882). 134 U.S. 1 (1890). The Schooner Exchange v. McFaddon, 11 U.S. 116, 136 (1812). Chapter 1, pp. 39–40. 11 U.S. at 136. See 2 John Bassett Moore, A Digest of International Law §§ 250–58 (1906). The Schooner Exchange, 11 U.S. at 144.


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and U.S. warships in foreign ports.263 However, the Supreme Court did not issue any decisions during this period that are directly relevant to the topic of foreign sovereign immunity.264 Underhill v. Hernandez265 is the only Supreme Court decision from the period that could plausibly be characterized as a “foreign sovereign immunity” decision. The Court affirmed the Second Circuit’s dismissal of a civil suit for damages against the defendant Hernández for actions he took in Venezuela as an official agent of a revolutionary Venezuelan government. Hernández subsequently went to New York, where Underhill sued him in federal court. The trial court directed a verdict for Hernández “because the acts of defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor.”266 The federal appeals court affirmed, asserting “that the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.”267 The Supreme Court affirmed, adopting the rationale of the appellate court: “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”268 Although Underhill did not concern the suability of a foreign sovereign eo nomine, its holding was animated by the same concern of respecting a foreign state’s sovereignty. Modern scholarship generally associates Underhill with the act of state doctrine, not sovereign immunity. Even so, “the act of state doctrine and the rules of foreign sovereign immunity are functionally similar insofar as both defer to foreign sovereigns.”269 Indeed, the Court in Underhill hinted at this functional similarity by referring to “[t]he immunity of individuals from suits brought in foreign tribunals for acts done . . . in the exercise of governmental authority.”270 For present purposes, a key distinction between Underhill and The Schooner Exchange is that The Schooner Exchange treated sovereign immunity as an interpretive presumption limiting the application of general federal jurisdictional statutes to foreign sovereign property within the United States.271 In contrast, the Court in Underhill seemed to view the act of state doctrine as a rule of law to be applied directly, rather than an interpretive gloss on the applicable jurisdictional statute.272 It is noteworthy that the Court announced the key rule in Underhill – that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory”273 – without citing any authority in support. As discussed in more detail below, this non-textual approach was characteristic of the Court’s federal and state sovereign immunity jurisprudence during this period. But this approach makes it difficult to determine whether the Court thought that the rule announced in Underhill 263 264 265 266 267 268 269 270 271 272 273

See Moore, supra note 261, §§ 252–56. State courts and lower federal courts occasionally issued opinions addressing foreign sovereign immunity. E.g., Hassard v. United States of Mexico, 61 N.Y.S. 939 (N.Y. App. Div. 1899). 168 U.S. 250 (1897). Id. at 252. Id. Id. Mark Weston Janis, International Law 365 (5th ed. 2008). Underhill, 168 U.S. at 252. See Chapter 1, pp. 39–40. See Chapter 3, pp. 119–20. Underhill, 168 U.S. at 252.

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was based on customary international law, “general law,” a domestic separation of powers principle, or some other source.

B. Federal Sovereign Immunity By the late nineteenth century, the Supreme Court had acknowledged the sovereign immunity of the United States but without articulating its legal basis or whether such immunity was required by the Constitution. The seminal federal sovereign immunity case, United States v. Lee,274 was decided in 1882. Robert E. Lee’s grandson brought suit against federal tax commissioners who bought General Lee’s estate after a failure to pay taxes that were allegedly owed. The Attorney General sought dismissal of the suit, arguing that the United States held the property under its “sovereign and constitutional powers” and so the court lacked jurisdiction.275 The Court unanimously found that the United States was entitled to sovereign immunity and in so doing invoked international law. The four dissenters argued that the government’s immunity also protected individual government officers; the majority disagreed on this point. Consequently, Justice Samuel Miller devoted most of the majority opinion to supporting the conclusion that the individual officers were not entitled to immunity.276 His argument on this point did not rely on international law. Justice Gray wrote for the four dissenters. His opinion provides a more sustained defense of the government’s immunity than does the majority opinion. In part, Gray’s dissent linked sovereign immunity to protection of core sovereign functions including, importantly, defense of the country: The maxim is not limited to a monarchy, but is of equal force in a republic. In the one, as in the other, it is essential to the common defence and general welfare that the sovereign should not, without its consent, be dispossessed by judicial process of forts, arsenals, military posts, and ships of war, . . . of custom-houses and revenue cutters, employed in the collection of the revenue; or of light-houses and light-ships, established for the security of commerce with foreign nations and among the different parts of the country.277

The opening reference to forts, arsenals, and military posts is particularly illuminating because they were the federal installations the “dispossession” of which was the key issue at the start of the Civil War. In addition to this functional argument, Gray drew an explicit linkage between the internal sovereign immunity of the federal government and the external sovereign immunity associated with the doctrine of foreign sovereign immunity: The principle that no sovereign can be sued without its consent applies equally to foreign sovereigns and to the sovereign of the country in which the suit is brought. The exemption of the sovereign is not less regarded by its own courts than by the courts of other sovereigns. To repeat the words of Chief Justice Taney, already quoted: “It is an 274 275 276 277

106 U.S. 196 (1882). Id. at 198. See id. at 209–23. Id. at 226.


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established principle of jurisprudence, in all civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.”278

By explicitly linking the federal government’s immunity to foreign sovereign immunity, Justice Gray attempted to provide an international law foundation for the doctrine of federal sovereign immunity. As noted earlier, the principles of international law, properly understood, provide little basis for the doctrine of federal sovereign immunity. But that did not prevent Justice Gray from invoking international law to support the doctrine. Like the dissent, Justice Miller’s majority opinion offered a functional justification for the federal government’s sovereign immunity: [I]t would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money in his treasury.279

And like the dissent, Justice Miller invoked international law in support of federal sovereign immunity, albeit more obliquely: As we have no person in this government who exercises supreme executive power or performs the public duties of a sovereign, it is difficult to see on what solid foundation of principle the exemption from liability to suit rests. It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself from assaults in those courts.280

The term “publicists” was a common term for public international law scholars at the time, just as “public law” was a common term for “public international law.” Moreover, it is clear from the context that Justice Miller’s reference to the “supreme power in every state” is a reference to nation-states, not States within the United States. Thus, like Gray’s dissent, Miller’s majority opinion relies in part on international law to justify the doctrine of federal sovereign immunity. United States v. Lee involved a subtle generalization from the international law principle of foreign sovereign immunity – a sovereign’s immunity from suit by citizens of foreign governments – to a principle of inherent sovereign immunity from all litigants, including citizens of the sovereign itself. In taking this inferential step, the Court – both the majority and the dissent – eschewed reliance on a common law pedigree in favor of grounding the doctrine in “public” or international law. The key bridge concept was sovereignty: specifically the need to protect the sovereign from legal actions that might result in remedies divesting the sovereign of property and revenues essential to defending and running the country. Thus, just as the inherent powers cases discussed in Part II invoked the abstract principle of sovereignty to derive specific rules about the scope of federal governmental powers, Lee relied on the abstract concept of sovereignty to justify a specific rule protecting the sovereign immunity of the federal government. 278 279 280

Id. at 235 (quoting Beers v. Arkansas, 61 U.S. 527, 529 (1858)). Id. at 206. Id. at 206–07.

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C. State Sovereign Immunity In contrast to the act of state doctrine and federal sovereign immunity, state sovereign immunity is grounded in a specific constitutional provision – the Eleventh Amendment. The text of that Amendment states, “The judicial power . . . shall not be construed to extend to any suit . . . against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” As one of us has explained in a previous article, the Eleventh Amendment is based on the international legal principle of the sovereign equality of states.281 That principle, like the text of the Eleventh Amendment, precludes the citizens of one sovereign from suing a different sovereign. Neither the constitutional text nor the principle of sovereign equality addresses suits by citizens against their own sovereign. However, in Hans v. Louisiana,282 decided in 1890, the Supreme Court construed state sovereign immunity to extend well beyond the words of the constitutional text. Hans, a citizen of Louisiana, sued his home State for violating the Constitution’s Contracts Clause, asserting that Louisiana had “impaired” contracts by defaulting on bonds the State had issued but would not redeem. The text of the Eleventh Amendment cannot be read to preclude such a suit; to the contrary, it seems to permit it. The amendment states that “the Judicial Power” set forth in Article III, Section 2 of the original Constitution, “shall not be construed to extend to any suit” against a State “by Citizens of another State, or by Citizens or Subjects of any Foreign State.”283 The amendment says nothing about suits by citizens of the State being sued. In fact, the more faithful reading of the constitutional text, as the Hans Court readily acknowledged,284 was that the lack of any textual reference to “Citizens of the State” suggests that such suits were intended to survive, at least with respect to federal law claims, which were the laws of a higher sovereign vis-à-vis the States. The Court in Hans disavowed the Constitution’s words in favor of the principle that a State may not be sued in a U.S. federal court without its consent, even on a federal constitutional claim. The international law principle of sovereign equality justifies the explicit proscription of the Eleventh Amendment. But it is difficult to see how international law could justify the holding in Hans that a citizen of a sub-national political entity may not bring a federal constitutional claim against that entity in federal court. In the final analysis, the Court’s opinion in Hans did not rely on international law or constitutional text. Instead, it rested on what the Court perceived to be an essential attribute of every sovereign state. In the Court’s words: “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union.”285 Thus, like the inherent powers cases discussed in Part II, and like the Court’s decision in United States v. Lee, Hans illustrates the Court’s tendency in the late nineteenth century to decide constitutional and sub-constitutional issues by deducing rules from the Justices’ 281 282 283 284 285

See Lee, supra note 195, at 1032–33. 134 U.S. 1 (1890). U.S. Const. amend XI. Hans, 134 U.S. at 10 (“It is true the Amendment does so read.”). Hans, 134 U.S. at 13 (quoting The Federalist No. 81 (Alexander Hamilton)).


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views about the “inherent” attributes of sovereignty. In fact, Hans arguably goes farther than any other Supreme Court decision during the period in relying on the “inherent attributes” of sovereignty to resolve a constitutional issue in a way that conflicts with the plain meaning of the constitutional text.

IV. Conclusion During the years from 1861 to 1900, the Supreme Court frequently used international law as an aid in interpreting congressional statutes and the Constitution. In so doing, the Court typically sought interpretations that were consistent with mainstream views of international law as reflected not only in treaties and state practice but also in general principles and the writings of respected publicists. Moreover, the international law principles used as interpretive aids were sometimes articulated and applied at such high levels of abstraction that they were effectively indistinguishable from political theories of sovereign powers and immunities. The Court invoked international law not only in cases involving ambiguous constitutional and statutory provisions touching on foreign relations, but also in cases implicating formally domestic concerns such as eminent domain and federalism. Notwithstanding the diversity of rules and contexts, some overarching themes emerge from a study of the Court’s decisions invoking international law as an interpretive tool during the period. First, in cases where the Court used international law to interpret federal statutes, its decisions generally promoted compliance with the nation’s international legal obligations, whether treaty provisions or rules and principles of the law of nations. Although the Court rarely cited Charming Betsy, it routinely applied the principle that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”286 The Court acknowledged that a later-in-time statute would trump an earlier conflicting treaty, but it frequently construed statutes to avoid any such direct conflicts. To be sure, the Court deviated from the Charming Betsy canon in a few cases, but the vast majority of statutory interpretation cases implicating international law were consistent with it.287 Overall, the statutory cases from this period suggest that the Court believed it shared responsibility, along with the political branches, for promoting compliance with the nation’s international legal obligations. Second, in both statutory and constitutional cases, the territoriality principle – a corollary of the international law principle of the exclusive sovereignty of a nation within its borders – played a significant role in Supreme Court jurisprudence. The Court invoked international law to regulate the extraterritorial application of federal statutes288 and of the Fifth and Sixth Amendments.289 Similarly, the Court relied on the territorial principle to limit the jurisdiction of state courts290 and to extend U.S. citizenship to children of Chinese nationals born in the United States.291 In the wartime context, the Court generally applied the international law of war doctrine of enemy property on a territorial basis, depending on the residence of the property owner. Property owned 286 287 288 289 290 291

Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). See supra Part I. See supra Part I.A. See In re Ross, 140 U.S. 453 (1891). Pennoyer v. Neff, 95 U.S. 714 (1878). United States v. Wong Kim Ark, 169 U.S. 649 (1898).

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by U.S. citizens resident in seceded or soon-to-secede States was generally classified as “enemy” property. By the same token, the Court, in Milligan, declined to apply law of war doctrines to the criminal prosecution of U.S. citizens in friendly territory, regardless of whether they were alleged to have aided or conspired to assist the enemy.292 Third, the Court frequently invoked the concept of “inherent attributes of sovereignty” to help resolve a variety of constitutional and sub-constitutional issues. Pitched at a high level of abstraction, the Court’s analysis in these cases relied on deductive reasoning to identify the essential traits of sovereign states, conceived as functionally undifferentiated social organisms. The Court would then justify a governmental act on the basis of this essential trait, ignoring and sometimes dismissing justifications based on constitutional text. For example, the Court invoked the presumed “essential attributes” of sovereignty to support its ruling that the United States was entitled to sovereign immunity293 and to support its view that Congress had authority, when acting within the scope of its Article I powers, to supersede binding international treaties for purposes of domestic law.294 Indeed, in some cases the Court relied on the abstract concept of sovereignty to justify significant departures from the plain meaning of the constitutional text.295 The Court frequently used phrases such as “the powers inherent in sovereignty” to support the constitutional validity of federal statutes, without bothering to anchor Congress’s power in any particular provision of Article I.296 In this respect, the Court’s constitutional jurisprudence during this era was in tension with the traditional maxim that Congress exercises only “limited and enumerated powers.”297 And, as we have seen in the sovereign immunity cases, sometimes these “essential attributes” assumed a life of their own that deviated sharply from the specific international law rules or principles from which they originated. Fourth, and relatedly, the Court was remarkably non-textualist in its approach to constitutional interpretation during this period. Indeed, there are several cases discussed at length in Parts II and III of this chapter where it is not entirely clear whether the Court was applying constitutional law, international law, natural law, general principles of public law in civilized nations, or some combination of the above. Moreover, there are many cases in which the Court’s analysis tacitly assumes that formal distinctions among these sources of law are not terribly important. The Court’s evident lack of attention to the “positivist” source of the law being applied stands in marked contrast to the trends highlighted in Chapters 2 and 3, both of which note a transition from natural law to positivism during this period. It is not entirely clear why the Court adopted such a nontextualist approach from 1861 to 1900. It is possible that the Civil War and its aftermath colored the Court’s view of the relative value of the U.S. Constitution’s explicit words in fulfilling the “constitutional” function of defining the basic working rules for the country. And so a flexible body of rules and principles with a plausible claim to status as “law” was a natural and useful alternative source for constitutional rules of decision. 292 293 294 295 296 297

Ex parte Milligan, 71 U.S. 2 (1866). United States v. Lee, 106 U.S. 196 (1882). See Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 Cornell L. Rev. 97, 166–68 (2004). Hans v. Louisiana, 134 U.S. 1 (1890). See supra Part II.D. See McCulloch v. Maryland, 17 U.S. 316, 405 (1819) (stating that the principle of enumerated powers “is now universally admitted”).


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Fifth, the Court’s invocations of international law sometimes resulted in decisions promoting governmental powers at the expense of individual rights. In this respect, there was a notable distinction during this period between statutory interpretation cases and constitutional cases. In statutory interpretation cases, the Court generally applied international law in a way that constrained the exercise of governmental powers – that is, it typically construed statutes narrowly to avoid conflicts with a relevant treaty or custom. In constitutional cases, however, the Court frequently applied international law in a way that augmented governmental powers (e.g., in the war powers cases and the “inherent sovereign powers” cases) or expanded the scope of governmental immunities. There are notable exceptions to both trends: for example, the Court used international law to constrain state judicial power in Pennoyer (a constitutional case) and effectively ratified governmental action in violation of international law in In re Cooper (a statutory case). Even so, the general trends were as stated above. Sixth, some Justices were more inclined to invoke international law than others. Justices Waite and Gray were particularly enamored of the practice, which is unsurprising given the international legal experience of the former and the academic background of the latter. Justice Field, too, often invoked international legal principles in his opinions. Field’s applications focused strongly on the territoriality principle, which he applied to decisions in a broad range of subject areas, such as immigration and the territorial jurisdiction of state courts. Finally, although today international law is neatly thought to comprise two dimensions – treaties and customary international law – the sources of international law in this period were more diverse. This robust vision of “international law” rendered it a more flexible and powerful tool in the service of statutory and constitutional construction. To be sure, the Court did invoke treaties and state practice, but it also frequently consulted general principles of public law common to civilized nations, the foreign law of bellwether countries like England and France, and, most notably, treatises on international law. The most esteemed of these sources was the mid-eighteenth-century writer Vattel, the Swiss publicist particularly valued by the Framing generation. The Court’s many references to his treatise suggest that the Court considered Vattel a reliable reference on contemporary international law, rather than a resource to shed light on the views of the Framers. From this we can infer the Court’s implicit belief in international law’s continuity and immutability, and not necessarily an implicit desire to recover original intent. In other words, as applied to constitutional interpretation, the Court’s resort to international law in decisions between 1861 and 1900 represented a jurisprudential technique that was not only non-textualist but also non-originalist.

5 A Social History of International Law: Historical Commentary, 1861–1900 John Fabian Witt∗

The history of international law is quietly flourishing. Lawyers are tending new shoots of scholarship – witness the bumper crop of work produced in this volume alone.1 Political theorists are nurturing a wonderful new literature on the theoretical history of the field.2 And after years of leaving the fields fallow, historians are rushing (belatedly) to harvest heaps of new insights.3 ∗

1

2

3

Allen H. Duffy Class of 1960 Professor of Law, Yale Law School. Kellen Funk and David Simons provided excellent research assistance in the preparation of this chapter. In addition to the work presented here, see, e.g., David J. Bederman, The Spirit of International Law (2002); Mark Weston Janis, The American Tradition of International Law: Great Expectations 1789–1914 (2004); Martti Koskenniemi, The Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (2002); Kal Raustiala, Does the Constitution Follow the Flag? (2009); Sarah Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of Plenary Power over Foreign Relations, 81 Tex. L. Rev. 1 (2002); Martin Flaherty, The Future and Past of U.S. Foreign Affairs Law, 67 Law & Contemp. Probs. 169 (2004); David Golove, The Framers’ Understanding of Originalism and International Law, 11 Chap. L. Rev. 307 (2008); David Golove, Military Tribunals, International Law, and the Constitution, 35 N.Y.U. J. Int’l L. & Pol. 363 (2003); David Golove, Treaty Making and the Nation, 98 Mich. L. Rev. 1075 (2000); Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819 (1989); David Kennedy, International Law in the Nineteenth Century, 17 Quinnipiac L. Rev. 99 (1998) [hereinafter Kennedy, Nineteenth Century]; David Kennedy, New Approaches to International Law: A Bibliography, 35 Harv. Int’l L.J. 417 (1994); David Kennedy, The International Style in Postwar Law and Policy, 1 Utah L. Rev. 7 (1994); David Kennedy, Receiving the International, 10 Conn. J. Int’l L. 1 (1994); Thomas H. Lee, The Supreme Court of the United States as Quasi-International Tribunal, 104 Colum. L. Rev. 1765 (2004); James Q. Whitman, The Breakdown of Battle Culture, from Waterloo to Sedan, presented at the American Society for Legal History Annual Meeting (November 13, 2009). See, e.g., Gary Bass, Freedom’s Battle: The Origins of Humanitarian Intervention (2008); Gary Bass, Stay the Hand of Vengeance (2001); David C. Hendrickson, Peace Pact (2003); Peter S. Onuf & Nicholas G. Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolution, 1776–1814 (1993); Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (1999); Jennifer Pitts, Boundaries of Victorian International Law, in Victorian Visions of Global Order 67 (Duncan Bell ed., 2007). David Armitage, The Declaration of Independence: A Global History (2007); Elizabeth Borgwardt, A New Deal for the World (2005); Peter Holquist, By Right of War: The Discipline and Practice of International Law in Imperial Russia (forthcoming); Isabel V. Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (2005); Thomas J. Knock, To End All Wars (1992); Adam McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (2008); Samuel Moyn, The Last Utopia: Human Rights in History

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A Social History of International Law

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The field of international law history is maturing so quickly that those who tend to it have barely had the opportunity to articulate its aims, its subjects, or its methods. There is some virtue in this, of course. The wild and unconstrained growth that occurs when the underbrush is first cleared – before the construction of the formal disciplinary trellises and latticework – can produce delightful and unexpected blossoms. It is tempting simply to shout “hooray.” Let a thousand flowers bloom. Yet as the sprouts turn into vines and before they root themselves too deeply in the soil, it may be useful to reflect on the project of doing history in the garden of international law. Here at the beginnings of the field we can start to identify at least three different approaches or schools. Each is imminent in the literature as it now stands. The first approach – and I think far away the dominant one – is what we might call the insider doctrinal history approach. A second school consists of outsider doctrinal histories. The third approach I discuss in this chapter is what we might call a social history of international law, one that considers the field in its relation to the societies from which it has emerged. It is fair to say that most of the contributions to this volume fall broadly into the insider doctrinal history school. That is not surprising. The insider approach is typically adopted by lawyers active in the field of international law who have turned to the field’s past for the purpose of shedding light on its present and future. Usually the insider doctrinal history aims to find firm historical foundations for international law. The outsider doctrinal approach is also dominated by lawyers. By contrast with the insider doctrinal approach, however, the outsider doctrinal project typically aims to destabilize confidence in the viability of the field – or at least to express considerable anxiety about its legitimacy. For the most part the social history of international law, by contrast, has been the province of historians, not lawyers per se. As a result, the social historians of international law have been less concerned with the legitimacy or illegitimacy of the field, or with its internal normative commitments, and more interested in the social significance of the practice of international law in specific times and places. In any field as complex as international law, there will always be many different ways to illuminate the past; it would be silly to think otherwise.4 In this sense, the emerging diversity of the field, its variety of different, overlapping, and sometimes competing approaches should be cause for celebration. One rather mild critique of the chapters here is thus that for the most part they adopt the vantage offered by only one of the

4

(forthcoming 2010); Susan Pedersen (forthcoming book on the League of Nations); Christina Duffy Burnett, “They Say I Am Not an American . . . ”: The Noncitizen National and the Law of American Empire, 48 Va. J. Int’l L. 659 (2008); see also Christina Duffy Burnett, Naked Nationals, Subject Citizens: A History of Membership under International Law (on file with author); Kenneth Cmiel, The Emergence of Human Rights Politics in the United States, 86 J. Am. Hist. 1231 (1999) [hereinafter Cmiel, Emergence]; Kenneth Cmiel, The Recent History of Human Rights, 109 Am. Hist. Rev. 117 (2004); Francine Hirsch, The Soviets at Nuremberg, 113 Am. Hist. Rev. 701 (2008); Adam J. Kosto, Hostages during the First Century of the Crusades, 9 Medieval Encounters 1, 3 (2003); Mark Mazower, The Strange Triumph of Human Rights, 1933–1950, 47:2 Hist. J. 379 (2004); Nicholas Parrillo, The De-Privatization of American Warfare, 19 Yale J.L. & Human. 1 (2007); John Fabian Witt, Internationalist Beginnings: Crystal Eastman and the Puzzle of American Civil Liberties, in Patriots and Cosmopolitans (2007); John Fabian Witt, Lincoln’s Laws of War, Slate, Feb. 11, 2009, http://www.slate.com/id/2210918. See also the empirical approach, which uses historical data to test propositions relating to the effectiveness of international law rules. E.g., Oona Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935 (2002); James D. Morrow, A Spatial Model of International Conflict, 80 Am. Pol. Sci. Rev. 1131 (1986). Tanisha Fazal’s ongoing empirical study of the laws of war will be a significant addition to this field.

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three approaches I have described. All things being equal, diversity is a virtue. Seeing the problem from many sides is a good thing. Here, however, we get only one view. That seems to be a flaw in the chapters as a group, although not necessarily a flaw in any one of them.5 Yet a stronger critique can be made of the chapters. At this stage in the field’s budding maturity, many of the most interesting questions that scholars should be asking can be best answered by adopting the vantage point and methods of the third school or approach, what I have called here the social history of international law. With a couple of notable exceptions, many of the most important and interesting questions about the history of international law (in or out of the U.S. Supreme Court) are not taken up in the these chapters. This is not to say that the chapters are not excellent: they are models of professionalism. In this chapter I review some of their significant contributions. But I also describe the limits of what passes as the professional history of international law in the insider doctrinal mode. In the process, I suggest that the social historical approach promises to offer a better vantage point from which to view the role of the U.S. Supreme Court in international law. If the scholarly study of the history of law more generally is any guide, scholarship on the history of international law is overdue for what we might call its social turn.

I. The Inside View A. Internalism and Its Project There are at least four common features characteristic of what I have styled the insider approach to doing the history of international law. First, the insider approach essentially adopts the perspective of the lawyer practicing within the field. Its methods are those of the practicing lawyer.6 Its chief proponents, not surprisingly, are practitioners in the field of international law. And typically its central aim is to establish the historical roots of the field in which its authors labor.7 Second, insiders focus principally on the history of the classic questions relating to the legality of the practice of international law. Is the field really a field of law? Was Austin’s critique of the field as not law at all a sound critique?8 What is the legitimating legal basis of the field? Insider histories of international law in America are preoccupied with these questions.9 Third, insiders adopt lawyers’ materials as the universe of relevant materials from which to write the history of the field. Lawyers’ literature, conferences of jurists, and (especially) cases decided in courts form the core of the subject matter under consideration.10 Fourth, insiders place a high value on the public rhetoric of 5 6

7 8 9 10

Perhaps this criticism is best directed at the volume’s editors! Not surprisingly, there is a long history of insider histories, going back to the founders of the American profession of international lawyers. See James Brown Scott, The Legal Nature of International Law, 1 Am. J. Int’l L. 831 (1907); Frederick Pollock, The Source of International Law, 2 Colum. L. Rev. 511 (1902); Simeon E. Baldwin, The Part Taken by Courts of Justice in the Development of International Law, 10 Yale L.J. 1 (1900); John Bassett Moore, The United States and International Arbitration, 16 Am. L. Rev. 66 (1892). The leading statement of the insider view in American history is probably Janis, supra note 1; see also Jay, supra note 1. See John Austin, The Province of Jurisprudence Determined 208, 213–14 (1832). E.g., Janis, supra note 1. Id.


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the practice of international law. That is to say, the insider view takes public discourse about international law seriously and treats it as telling us something important about the international legal process and about the conditions of international law’s legitimacy.11 Each of these four characteristic features is on display in the three chapters covering the period 1861–1900. They adopt the viewpoint of the international lawyer. They concern themselves with the sources and bases of legal legitimacy, such as natural law and positive law and the practices of states. They take as their principal subject the efforts of jurists and judges to elaborate the regime of international law and to apply the norms of international law. And for the most part these chapters do not go behind those efforts to try to make psychological or realist claims about underlying reasons or interests. Nor do they go behind the doctrine to make sociological or political claims about institutional settings. Within these broad parameters, the chapters here make a number of significant contributions. Who can doubt after reading Professors Thomas Lee and David Sloss (Chapter 4) that the use of international law as an aid for statutory interpretation was a matter of routine practice in the nineteenth-century U.S. Supreme Court? Who can doubt after reading Professor David Bederman (Chapter 3) that customary international law has deep roots in American law stretching back two hundred years? And who can doubt after reading Professor Duncan Hollis (Chapter 2) that the U.S. Supreme Court has been dealing with knotty problems arising out of treaty law since the Civil War and before? Indeed, the great contribution of the chapters here is to answer beyond doubt the tacit (and sometimes express) historical claim by recent critics of internationalism in American law that engagement with international law is somehow foreign to American legal discourse, that it is a recent and aberrant development.12 International law (and before that the law of nations) has deep roots in American political and legal discourse, inside as well as outside the Supreme Court. It is simply preposterous to suggest otherwise, and we can thank these chapters for pounding the final nails into the coffin in which claims to the contrary are properly interred.13 But this question is worth asking: is this the kind of history we should be doing if we want to understand the history of international law in America or even the history of international law in the U.S. Supreme Court? Put a little differently (and a bit more crudely), should we let the most misguided critics – those who seem to deny the longstanding significance of international law in American legal and political discourse – shape the agenda of historical research in the field? I hope the answer to the latter question is a resounding “no,” and if so then I think the answer to the former should be “no” as well. The insider view places real limits on the kinds of questions we can ask and answer about international law and its history.

B. The Limits of Internalism There is no more common move in insider histories of international law than the discussion of that classic chestnut of the field, the famous shift from natural law to positive law as the field’s jurisprudential basis. Is international law derived from natural law principles, or is it forged by the voluntary agreement of states? This is the perfect 11 12 13

Id. E.g., Jeremy A. Rabkin, Law without Nations?: Why Constitutional Government Requires Sovereign States 17 (2005); Jed Rubenfeld, The Two World Orders, 27 Wilson Q. 22 (2003). See especially Cleveland, supra note 1.

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insider question: it asks about the kinds of arguments that international law practitioners make. Its answer turns on materials that are lawyers’ materials. And both the question and its competing answers go to the heart of the legality of international law itself. Lawyer-historians have been working with the supposed shift from natural law to positivism for decades.14 Yet there are few analytic frameworks more fraught with danger for the historical scholar of international law than this purported shift. It turns out to be extraordinarily difficult to label most of the leading lights in the early modern and Enlightenment law of nations as naturalists or positivists. Was Hugo Grotius a natural lawyer? Was he a social contractarian? Are these designations the same? Or did he rely on the social conventions of states? The answer is that he was all of these things. Teasing out the natural law of nations from the voluntary law of nations in Grotius’s account is excruciatingly difficult, in no small part because the practice of states was for Grotius one measure of the content of the natural law of nations.15 Emmerich de Vattel also mixed natural law with positive law. Indeed, throughout the seventeenth and eighteenth centuries we find nature and reason, on the one hand, hopelessly mixed up with practice and positive law, on the other. Time and again, we find ostensible naturalists looking to state practice to determine what natural law entails, and ostensible conventionalists appealing to reason to derive hypothetical state conventions.16 This is not to say that the categories of natural law and positivism cannot be deployed usefully in historical analysis. David Armitage’s striking work on the Declaration of Independence as a move in the emerging positivist regime of the law of nations and international law is a good example. Armitage’s project is to create a genealogy of the institution that gives rise to modern positivism – namely the modern state – and his argument is that the Declaration of Independence is a seminal moment in the twocentury process by which sovereign states separated themselves out from the bramble of early modern political units.17 David Golove has also made good use of the shift from a law of nations that exists independent of states, on the one hand, to a law of nations that is the creature of states, on the other. For Golove, the slow and hesitant and never complete shift makes sense of how we came to lose the world of the eighteenth and early nineteenth centuries, a world in which it was widely believed that governmental powers in wartime were constituted by (and thus constrained by) the international laws of war.18 So there are some successful deployments of the natural-law-to-positivism shift in recent work in the history of international law. Still, using this shift is a little like using old bread to mop up your soup. It is moldy and stale, and it does not let us take up as much of the good stuff as we would like.

14 15 16

17 18

See, e.g., Arthur Nussbaum, A Concise History of the Law of Nations (1947). Hugo Grotius, The Rights of War and Peace (Richard Tuck ed., 2005); see also Tuck, supra note 2. On the relationship between custom and reason in early modern and Enlightenment legal thought, see James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason?, 58 U. Chi. L. Rev. 1321 (1991). It is just plain mistaken to say as Stewart Jay does that there was a “consensus” on natural law in the eighteenth century, citing Vattel. See Jay, supra note 1, at 822. It is exceedingly unlikely that Chief Justice John Marshall, the consummate politician-justice, the deft author of Marbury v. Madison and Stuart v. Laird, and the skilled navigator of American neutrality along the shoals of the Napoleonic Wars, held the view that Jay suggests. David Armitage, The Declaration of Independence and International Law, 59 Wm. & Mary Q. 39 (2002); see also Armitage, supra note 3. David Golove, A Just War Constitution (2009) (unpublished manuscript on file with author).


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Even sophisticated scholars who use the natural law/positivism distinction can end up merely pushing the broth around the bowl. Take Duncan Hollis’s story in Chapter 2 about positivism as an explanation for doctrinal change in the law of treaties in the second half of the nineteenth century.19 Can positivism explain the distinctive features of treaty law in this period? I think it cannot. Professor Hollis writes that positivism “came at the expense of individual rights under international law.”20 But as an abstract conceptual matter this need not be so. Individual rights in modern international law (such as they are) often flow from state practice and voluntary agreements among states.21 Positivism in the late nineteenth century was full of entitlements for individuals – think of the laws of war, for example, and their implications for the men who fought as guerrillas in Missouri in 1862 or as franc tireurs in France in 1871.22 Conversely, the longest lived natural law tradition in the Western world – the Catholic tradition that begins with Augustine – had during its medieval and early modern heyday little room for individual rights at all.23 As Richard Tuck’s compelling formulation reminds us, the rise of individual rights in Western political thought and international law went hand in hand with the theory of the modern state.24 Of the chapters here, David Bederman’s is the one most self-consciously organized around the purported shift from natural law to positivism – what Professor Bederman calls the “well-established paradigm for understanding the jurisprudential evolution of customary international law.”25 Chapter 3 makes a number of very nice observations. It describes the mixed natural law/positive law status of the international law field in the period. Its account of the ambiguous place of customary international law in the state/federal scheme during the period is sharp and incisive. And it persuasively argues that the room allowed in American law for executive departure from customary international law was quite narrow. And yet from the outset of the chapter, its insider perspective limits what it can tell us about international law in the Supreme Court in U.S. history. The roots of the problem are evident in its first sentence, in which Professor Bederman tells us that the four Chief Justices between 1860 and 1900 “presided over a jurisprudential transformation 19 20 21 22 23

24

25

Chapter 2, pp. 62–66. Id., p. 63. Paul Gordon Lauren, The Evolution of International Human Rights (2003); A.W.B. Simpson, Human Rights and the End of Empire (2001). The Laws of War: Constraints on Warfare in the Western World, ch. 1 (Michael Howard, George Andreopoulos, & Mark R. Shulman eds., 1994). It turns out to be excruciatingly difficult to identify change over time during the nineteenth century in the way treaties did or did not reach within states to deal with individuals. It is exceedingly hard, for example, to find such differences between the Alabama claims commission Professor Hollis describes, see Chapter 2, p. 64, on the one hand, and the treaty commission negotiated by John Quincy Adams a half-century earlier to settle the dispute over slaves carried away by the British in the War of 1812. Both involved interstate arbitrations that produced cash transfers from one state (Great Britain) to another (the United States), leaving the recipient state with the task of distributing the funds among the claimants. Despite the passage of a half-century, it is hard to say much about which one was more or less state-based in its approach to the law of nations. On Adams and the slave reparations claims commission in the wake of the Treaty of Ghent, see Bradford Perkins, Castlereagh and Adams: England and the United States, 1812–1823 (1964). Tuck, supra note 2; see also David Armitage, Hobbes and the Foundations of Modern International Thought, in Rethinking the Foundations of Modern Political Thought (Annabel Brett & James Tully eds., 2006). Chapter 3, p. 91.

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of American law.” For the historian this is a startling way of putting it. It would seem far closer to the mark to say that in this time period the U.S. Supreme Court was carried along on the epic military, social, economic, and political tidal wave that was the Civil War and its aftermath. Of course, that might be too strong in the other direction. The Court was not merely carried along by change originating elsewhere, but itself played a role in shaping the social changes to which it necessarily responded. The jurisprudential dimensions of the transformation were important, too. It is one of the great stories of the middle of the nineteenth century that the Court managed to come out of the Civil War with its institutional stature preserved and probably even enhanced. That is why the legal history of the period is interesting to those of us who spend time writing it. But the Court and its jurisprudence were hardly autonomous, and few periods in American history better exemplify the power of developments outside the courts to shape the doctrines and law (the jurisprudence) inside the courts. Indeed, the Supreme Court’s independent significance during the period was (while important) always interstitial and at the margins. Legal history is interesting because of the way it works out a relatively autonomous set of ideas about human self-governance and the rule of law in the midst of social change, political contestation, and sometimes even tumultuous violence. The great lesson of legal-historical scholarship generally in the past half-century is that these two domains – law and society – can only be made sense of together. Any attempt to separate out the two is doomed either to failure or irrelevance. I do not want to seem unfair in singling out one sentence. The point I would like to make here is that the view Professor Bederman adopts – the view that legal change is best understood as jurisprudential change – is of a piece with the conventional posture of insider accounts of international law and its history. The insider view typically entails a theory of legal change that sees it developing autonomously according to its own internal traditions and by its own terms. The standard insider account of The La Jeune Eugenie and The Antelope provides a useful illustration of the problem I mean to identify here. According to the standard insider account, the pair of cases serves as a case study in the ostensible transition from natural law to positivism.26 Justice Joseph Story on circuit in The La Jeune Eugenie represents the higher law conception of international law.27 Chief Justice John Marshall in the Supreme Court in The Antelope stands for its positivist antithesis.28 So far so good. There is no doubt that the rhetoric of the two decisions tells us much that is interesting about the competing logics of legitimacy in nineteenth-century international law. But it will not do to overestimate the significance of the two jurisprudential frames at work. For one thing, we could more plausibly reverse the implicit causal arrows in the standard insider account. In this inverted view, the cases were really about the heated political controversy over the slave trade in 1820s America. Both decisions (and especially The Antelope) were caught up in the United States’ delicate relations with France, Great Britain, and Spain. They were entangled in the presidential aspirations of Secretary of State John Quincy Adams. Multiple political dramas played out in the cases. The decisions themselves were clothed in jurisprudential language, of course. And the language matters. But the jurisprudential clothing barely covered the underlying political, social, 26 27 28

Chapter 1, pp. 36–37. United States v. The La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822). The Antelope, 23 U.S. 66 (1825).


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and economic contestation.29 Looked at this way, the slavery controversy and related political contests helped produce the positivist mode of analysis in international law, not vice versa. Where Story of Massachusetts was strongly opposed to slavery, Marshall of Virginia was a slaveowning member of the older generation of Southerners who viewed the institution as an unfortunate but necessary evil.30 If we look more closely, it is not clear what it would mean to think that general positions on jurisprudential theory entailed particular substantive positions on the slave trade controversy. Natural law principles did not inevitably cut against the slave trade. As David Brion Davis’s magisterial account of the rise of antislavery thought demonstrated three decades ago, the creators of the law of nations tradition had been making natural law safe for slavery for a century and more by the time the 1820s rolled around.31 It may be true that in the 1820s, as a contingent historical matter, the slave trade controversy was more easily managed by reference to positive legal practice of states. And this may provide a way of understanding why Marshall adopted the positive view of law in his opinion. But we should not think that Marshall’s apparent positivism in The Antelope stemmed from a tectonic shift in the underlying logic of international law’s legitimacy. Both of the competing logics of legitimacy were readily available during the relevant period, and Story and Marshall exhibited remarkable flexibility in picking and choosing between them. In his dissent in The Venus, decided during the War of 1812, Marshall sounded like a natural lawyer, describing the law of nations as “a law founded on the great and immutable principles of equity and natural justice.”32 Conversely, Justice Story often adopted the stance of a hard-bitten positivist, deriving the law of nations from “commercial usages” and the “imposing authority of royal ordinances.”33 Indeed, in the midst of the controversy over The Antelope case, Story confided to his colleagues that he had no great commitment to the outcome or analysis he had suggested several years before in The La Jeune Eugenie.34 The great figures of the Marshall Court seem to have been situational natural lawyers and situational positivists, adopting either stance when it suited them best. The problem with focusing on positivism and natural law is what it leaves out of the story. Take cases like the Prize Cases and The Paquete Habana. Viewing them as referenda on a jurisprudential method is like describing the Papal Bull of 1493 as an interpretation of the theology of Paul the Apostle. This approach leaves untouched many of the kinds of things the interested observer would want to know about the decisions. Describing the logic of legitimacy in which the opinions sounded – that is, the opinions’ self-conception of what counted as a legitimate legal foundation – does not tell us why 29 30 31 32 33

34

For a fuller version of the cases and the controversies that surrounded them, see John T. Noonan, The Antelope (1977). On legal rhetoric as clothing, see Duncan Kennedy, Sexy Dressing Etc. (1993). R. Kent Newmeyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 347 (1985); Jean Edward Smith, John Marshall: Definer of a Nation (1996). David Brion Davis, The Problem of Slavery in Western Culture (1966). The Venus, 12 U.S. 253 (1814). Story’s full passage reads this way: “It first assumed the modest form of commercial usages; it was next promulgated under the more imposing authority of royal ordinances; and it finally became by silent adoption a generally connected system, founded in the natural convenience, and asserted by the general comity of the commercial nations of Europe.” Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic: In Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments 4 (1834). Noonan, supra note 29, at 105.

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the Taney Court and the Fuller Court decided the cases the way they did. It does not tell us what the Courts sought to accomplish by their decisions, nor does it tell us what they did in fact accomplish by their decisions. One can hardly write about the Prize Cases without mentioning that they were decided in the midst of the Civil War and that they raised questions that went to the heart of Lincoln’s capacity to carry on the war effort against the South. Lincoln’s supporters viewed the cases as an effort to use the courts to drain the U.S. Treasury and thereby bring the war effort to a crashing halt.35 Richard Henry Dana, who argued the cases on behalf of the Lincoln administration, famously worried that an adverse decision “would end the war.”36 Yet the internalist account describes international law in the Supreme Court in 1863 as an intellectual exercise in the competing bases of customary international law, not a contest that pitted the Republican Commander-in-Chief of an army made up of almost one million men against a Chief Justice who just a few years before had ruled the Republican Party platform unconstitutional.37 The Court decided the case under the shadow of Lincoln’s appointment of a tenth justice, Stephen Field, whose confirmation to the Court on the very day the cases were decided helped ensure that the Court would not get in the way of the war effort.38 We could say the same about the treatment of The Paquete Habana case at the end of Professor Bederman’s period. The political context here is almost as striking as the Civil War setting for the Prize Cases. In the wake of the successful war effort against Spain, at the moment in which the great theorist of sea power Alfred Thayer Mahan was championing a new vision for the American navy, the U.S. Supreme Court construed customary international law to entail what earlier generations of American international lawyers would have identified as Benjamin Franklin’s program for the law of war at sea. Under the Court’s holding, the economically productive noncombatants of the world (fishermen and their vessels, in particular) would be protected from the ravages of war.39 War’s unnecessary and wasteful costs would be held to a minimum. At least that was the theory. And so against the arguments of the United States and its Solicitor General, the Court reversed a lower court’s prize decree in favor of the U.S. navy captors and ordered the proceeds from the sale of the fishing vessels distributed to the vessels’ owners. In the process, the Court famously held that international law was the law of the United States. “International law,” Justice Horace Gray wrote for the majority, “is part of our law.”40 Professor Bederman is right that The Paquete Habana adopts a public rhetoric of positive law and state practice, as opposed to the more mixed conception of positive law and natural law evident in the Prize Cases. But it is striking to see how little that tells us. His account is surely not an explanation of why the case was decided the way it was. (As the three dissenters observed pointedly, Justice Gray was forced to do juristic cartwheels to explain away the state practice to the contrary.) Nor does Professor Bederman’s positive law/natural law dichotomy tell us much about the decision’s social significance or its relationship to naval warfare, maritime commerce, or the fishing industry at the turn of 35 36 37 38 39

40

Brian McGinty, Lincoln and the Court 141 (2008). Craig L. Symonds, Lincoln and His Admirals 46 (2008). See Dred Scott v. Sandford, 60 U.S. 393 (1857). McGinty, supra note 35, at 179–83. Admirals of the New Steel Navy (James C. Bradford ed., 1990); Walter R. Herrick, Jr., The American Naval Revolution (1966); Mark R. Shulman, Navalism and the Emergence of American Sea Power, 1882–1893 (1995). The Paquete Habana, 175 U.S. 677, 700 (1900).


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the twentieth century. In short, we do not know much about international law in the Supreme Court if all we know is the basis for international law norms that the decision purports to adopt. What is missing from Professor Bederman’s chapter is the politics of international law in the Supreme Court, its material context, and its ideological, moral, and economic stakes. What is missing, in short, is society.41 We would do better to heed Martti Koskenniemi’s call for historians of international law to do away with the stale idea of the shift from naturalism to positivism.42 We have good alternatives after all. Koskenniemi’s proposed candidate for a way of thinking about the history and development of international law is a particularly promising one. He focuses on the aims and institutional aspirations of the professionalizing cadre of international lawyers. In the United States during this time, this was an influential group, ranging from Francis Lieber to John W. Foster to Elihu Root. They were not, on the whole, avid supporters of multilateral treaties (the crispest form of state consent in the positivist sense). They tended instead to be proponents of conferences of expert jurists, whose expert views could be trusted to make the right kind of international law.43 Professionalization is hardly the only such alternative analytic frame for making sense of the history of international law. Other candidates would include models drawn from international relations theory or cultural history or network theory.44 Any of these would provide explanatory criteria for making sense of the way international law has been worked out in the Supreme Court. Indeed, if our goal is the study of international law in an institution such as the Supreme Court, it might make considerable sense to adopt an institutional analysis attuned to institution-specific considerations. The distinctive institutional posture of the Court illuminates a good deal about the way international law has operated in American history. The relative separation of the Court from the Executive makes it difficult to reduce the story of international law in U.S. history to the narrow pursuit of state interests as perceived by the executive branch. (Witness The Paquete Habana decision by the Court against the arguments of the McKinley administration.) One suspects that further research in the history of international law in the Court and elsewhere might reveal that 41

42 43

44

Professor Bederman’s chapter itself hints at the limitations of the internalist preoccupation with the jurisprudential basis of the regime when it suggests, almost as an aside, that the technology of legal literature helped shift the idiom of international law. The proliferation of treatises and secondary authority in the late nineteenth century made available a kind of international law discourse that was not possible for earlier generations of jurists. Similarly, the massive John Bassett Moore Digests project in 1906 made available a vast body of state practice and precedent. Surely one of the great questions – one hinted at here but not taken up – ought to be the extent to which new literary genres helped substitute new logics of legitimacy for old ones. Where once only reasoning from first principles could decide general maritime law disputes or prize cases, now there was an ever-thickening body of positive law-stuff from which to fashion opinions and decisions about law in the international realm. Koskenniemi, supra note 1, at 4. See Frank Freidel, Francis Lieber: Nineteenth-Century Liberal (1947); Philip C. Jessup, Elihu Root (1938); Elihu Root, Addresses on International Subjects (Robert Bacon & James B. Scott eds., 1916). For suggestive examples of the cultural history approach, see Gail Bederman, Manliness and Civilization: A Cultural History of Race and Gender in the United States, 1880–1917 (1995); Kristin L. Hoganson, Fighting for American Manhood: How Gender Politics Provoked the SpanishAmerican and Philippine-American Wars (1998). For a suggestive example of the network theory approach, see Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World (2002).

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the Court’s distinctive posture has had systemic effects on the development of international law in America. Put differently, and combined with Koskenniemi’s observation, a distinctive feature of American constitutional separation of powers seems to have been to create space for a built-in institutional constituency for international law, one that is relatively autonomous from the executive and legislative branches of government and from the society in which it sits. If we want to know about the relationship between the U.S. Supreme Court and international law, this inquiry about the institutional setting of the Court and its implications for international law seems absolutely crucial.

II. Expanding the Field A. What Is Left Out of the Insider Account The second half of the nineteenth century is the beginning of the world of international law as we know it. We see a dramatic rise in the number and significance of treaties, including multilateral treaties for telegraphs, railroads, postal services, and more (some 16,000 treaties in total during the nineteenth century by one count).45 The beginnings of modern international humanitarian law are evident in the Geneva Convention of 1864 (to which the United States became a party twenty years later during the administration of Chester Arthur) and in the Union Army code of rules for war, written by the ersatz international lawyer Francis Lieber and issued in 1863.46 Ius in bello rules were disseminated in pamphlets for the first time to armies across North America and Europe.47 Fierce arms races among European states emerged, in no small part because of the success of Prussian armies in the 1866 Austro-Prussian war of German unification and the Franco-Prussian War that followed soon thereafter.48 International lawyers founded nascent professional organizations such as the Institut de Droit International in Belgium and (three decades later) the American Society of International Law in the United States.49 David Dudley Field (the tenth Justice’s brother, and perhaps the nation’s most prominent lawyer) led a movement for codifying international law norms.50 At The Hague, diplomats worked out multilateral conventions for the arbitration of international disputes and elaborate codes for the conduct of armed conflict.51 Around the world, the arbitration of U.S. claims against Britain arising out of Confederate privateering activity (the so-called Alabama arbitration) became an inspiration for international lawyers for a generation. Rifled, breech-loading, and repeating weapons became standard technologies in warfare. European empire building experienced a second wave as European states (and their international lawyers) scrambled to divide the 45 46 47 48 49 50 51

Nussbaum, supra note 14, at 196; see also Warren F. Kuehl, Seeking World Order (1969); Gerard J. Mangone, A Short History of International Organization (1954). Lieber’s Code and the Laws of War (Richard Shelly Hartigan ed., 1983); Caroline Moorehead, Dunant’s Dream (1999). Geoffrey Best, Humanity in Warfare (1980). Michael Howard, The Franco-Prussian War (1989); Dennis E. Showalter, Railroads and Rifles (1975). Koskenniemi, supra note 1. Monroe Leigh & Christian DeFrancia, International Law Societies and the Development of International Law, 41 Va. J. Int’l L. 941, 942 (2000). Calvin D. Davis, The United States and the First Hague Peace Conference (1962); Calvin D. Davis, The United States and the Second Hague Peace Conference (1975).


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African subcontinent. Human rights discourse made an early appearance in the work of men like Edward Morel in the Belgian Congo.52 And, of course, right here in the United States four million slaves were freed under the authority of the laws of war in what was by some measures the most deadly armed conflict the world had known to date.53 The idea that one could tell the history of international law in this period without reference to these developments is nothing short of stunning. Yet that is the effect of adopting the blinders of the inside view, the view adopted by the three chapters here. At this point, some readers may be thinking, “Hey, come on, the subject of this volume is international law in the Supreme Court, not all this other stuff. That stuff may be important and interesting in its own right, but it is not what we’re talking about today!” That is not actually much of an answer. The very fact that the Supreme Court seems to have had little engagement with most of what was most important about international law in the period – if true – would be a pretty important fact in understanding the relationship between the Court and international law. (In this sense, it may be useful to think of the Thirteenth Amendment to the U.S. Constitution as a momentous turning point in the history of the Court and international law. Absent the Thirteenth Amendment, the Court would surely have been asked to decide on the legality of Lincoln’s emancipation of the slaves under the laws of war. Whether the Court would have taken on itself to decide the merits of so momentous a question is a different matter, of course.) If the Court were really a marginal player in these developments, that should be part of the inquiry here. And if true, this apparent marginality might reasonably cause us to study with greater specificity the questions of when and how the Court has been a significant institution in international law in American history. At the very least, the question of whether and when the Court has been a significant player in the history of international law in America would be a question worth asking. One could also ask a meta-question. As Carl Landauer has recently observed, American international lawyers have lavished undue attention on the Supreme Court since the very beginning of the modern professional apparatus of international law.54 Why is this? For the historian of the place of international law in America, the longstanding preoccupation with the Supreme Court is itself a significant fact for historical study. What is it about the profession of international lawyers in America that has caused it to spend so much time and effort studying an institution that has often entered only at the margins of the field?55 Of course, the Supreme Court did figure prominently in many of the most engaging debates about international law during the nineteenth century. That is what cases like Murray v. Schooner Charming Betsy (the undeclared war with France), Brown v. United 52 53

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Adam Hochschild, King Leopold’s Ghost (1998). Burrus M. Carnahan, Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War (2007); Stephen C. Neff, Justice in Blue and Gray: A Legal History of the Civil War 128–44 (2010). Carl Landauer, The Ambivalences of Power: Launching the American Journal of International Law in an Era of Empire and Globalization, 20 Leiden J. Int’l L. 325, 337–39 (2007). Paul Kahn suggests an answer that seems like a powerful one to me. On Kahn’s view, the international lawyer “puts tremendous weight” on judicial opinions from bodies such as the International Court of Justice and the U.S. Supreme Court “because he or she has an interest in and commitment to the juridification of [the international] order.” Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship 109–10 (1999).

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States (War of 1812), the Prize Cases (Civil War), and The Paquete Habana (naval power) were about.56 It is also worth noting that the Court has also been a player in international law developments and debates in other ways that evade the attention of insider histories. The kinds of institutions that late-nineteenth-century American international lawyers most hoped for were international courts modeled on (you guessed it) the U.S. Supreme Court. Indeed, for lawyers on both sides of the Atlantic, the Court became one of the central institutional analogies in the argument for a world court, the institution of choice for the professional international lawyer of the late nineteenth century. The apparent success of the Supreme Court of the United States seemed to hold out the hope that such a court was more than an unattainable dream.57

B. Thinking by Analogy: The History of Municipal Law There is a funny irony at work here. In the field of American law perhaps most concerned to demonstrate its basis in law (rather than mere morality or ethics or rhetoric), the main currents of scholarly historical research diverge from the historical literature found in most other domains of law. In most domains of legal historical research, influences from outside law – be they social influences, political pressure, economic imperatives, or military action – are assumed to be central features of the legal regime, of its rules, and of the decisions that it produces. Not so in the history of international law. Let me put this a different way. In the history of what we might call American municipal or domestic law, historians have almost entirely abandoned the project of telling its history mainly by reference to its internal categories. For at least a half-century now, historians have adopted one or more variations on the basic legal realist observation that law is embedded in society and is inescapably a way of accomplishing policy ends inexplicable outside that context. A generation ago, the giants of the field – scholars such as Willard Hurst, Lawrence Friedman, Robert Gordon, and Morton Horwitz, to name only a few – persuaded just about everyone working in the field that even the most entrenched domestic legal institutions are shaped in substantial part by society.58 Historians from Hurst to Horwitz wrote mostly about private law fields such as contract and property and tort. But constitutional law is subject to the same kinds of massive political and social pressures. Indeed, according to some of the most persuasive recent accounts, the development over time of key domains of constitutional law cannot be explained apart from the social movements and political transformations outside of the domain of formal constitutional law and the courts.59 56

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The Paquete Habana, 175 U.S. 677 (1900); The Prize Cases, 67 U.S. 635 (1863); Brown v. United States, 12 U.S. 110 (1814); Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804); Frederick C. Leiner, The Charming Betsy and the Marshall Court, 45 Am. J. Legal Hist. 1 (2001). E.g., Root, supra note 43, at 150. Lawrence Friedman, A History of American Law (3d ed. 2005); Morton J. Horwitz, The Transformation of American Law, 1870–1960 (1992); Morton J. Horwitz, The Transformation of American Law, 1780–1860 (1977); Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States (1956); Robert W. Gordon, Critical Legal Histories, 36 Stan. L. Rev. 57 (1984). For a fabulous recent contribution to the literature, see Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008). Prominent examples of work in this vein include Larry D. Kramer, The People Themselves (2004); Mark V. Tushnet, The NAACP Legal Strategy against Segregated Education (2d ed. 2005); Jack M. Balkin, How Social Movements Change (or


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As a result, the legal historical debate about domestic law – private law and constitutional – is a debate about how much society shapes the law, how much interest groups matter, how much economic pressures push the law, and how demographic trends and changing social attitudes affect the law. Few doubt that the law retains a relative autonomy. It has its own institutions, traditions, and learning. Many scholars believe that the relatively autonomous character of the law allows it to exert its own influences on society. In this view, law is partly constitutive of the society that shapes it. Society shapes law and, in turn, law shapes society. This is the view that my own work, for example, has adopted.60 But few historians claim more for law than this. The history of the law, in this dominant conception, is the story of the interaction between insider institutions, on the one hand, and an array of social forces and political imperatives, on the other.61 Surely the history of international law in the Supreme Court entails a similar story. One is tempted to wonder how it could be otherwise. We have a field of law that since its early modern roots has been concerned about its ever-embattled hold on legal authority within sovereign states. We have a body of law that is often asked to resolve disputes of grave significance, usually without a rich body of case law developed in ordinary contract, property, and tort disputes on which rests the legitimacy of decisions.62 On top of all this, in the U.S. Supreme Court we have a mechanism for selecting Supreme Court Justices that produces justices untrained in the intricacies of international law and who until recently tended to be successful practical politicians rather than accomplished jurists.63 The cultural work accomplished by international law in America is necessarily going to be fraught and contested, its authority embattled and tested, its norms subject to shaping and reshaping in the cauldron of social and political controversy and armed conflict. None of this would be apparent to the reader of the chapters here, however. Instead, the history of international law as we see it here seems to be about where the history of the law of other fields was about a half-century ago, before the transformative work of Hurst and his colleagues cleared the fields in which most legal historians labor today.

III. Alternatives So what is to be done? One thought surely springs to mind for the writers of the chapters of this book: maybe just throw the historical commentator out the window! But there is

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Fail to Change) the Constitution: The Case of New Departure, 39 Suffolk U. L. Rev. 27 (2005); William Eskridge, Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062 (2001); Hendrik Hartog, The Constitution of Aspiration and “The Rights that Belong to Us All,” 74 J. Am. Hist. 1013 (1987); Robert C. Post, Law and Cultural Conflict, 78 Chi.-Kent L. Rev. 485 (2003). See John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004). E.P. Thompson, Whigs and Hunters (1975); Gordon, supra note 58; Kenneth Mack, Law, Society, Identity and the Making of the Jim Crow South, 24 Law & Soc. Inquiry 377 (1999); John Fabian Witt, From Loss of Services to Loss of Support, 25 Law & Soc. Inquiry 717 (2000); John Fabian Witt, Speedy Fred Taylor and the Ironies of Enterprise Liability, 103 Colum. L. Rev. 1 (2003). International law is hardly alone in this – as cases like Bush v. Gore showed us, public law more generally shares the problem of sparse bodies of precedent and high-stakes cases. See Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 Harv. L. Rev. 1791 (2009). See, e.g., Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (5th ed. 2007).

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no need for such extreme measures. Instead, let us think about two alternative ways of going about the history of international law. Each has a budding literature already, and with a little pruning and some organic compost they will grow quite quickly.

A. Outsider Doctrinalist History The past decade or two has witnessed the rise of a different kind of doctrinal history. This second approach or school is made up of what I want to call outsider doctrinal histories. In this approach, the content of the field – the relevant subject matter material – remains the same as in insider doctrinal histories, but the methods are radically different. Where insider doctrinal histories aim to create deep roots for the field, outsiders are more likely to try to cut the growth off at the source. Outsider doctrinal histories adopt the methods of the social critic. They are skeptical of international law’s effects in the world (although they rarely pursue those effects very far). And they seek to reveal internal inconsistencies and contradictions in the intellectual efforts of international lawyers. Perhaps because of the longstanding connections between classical European political theory and the law of nations, outsider doctrinalism seems to be a more common posture in the literature on international law in European history. Leading work in this school includes Martti Koskenniemi’s sharply argued first book, From Apology to Utopia, and his magisterial second book, The Gentle Civilizer of Nations. David Armitage, Randall Lesafer, Benedict Kingsbury, and Richard Tuck (among many others) have made important contributions to this literature.64 What distinguishes the outsider school from the insiders or internalists is that it is regularly subversive of the legitimacy claims of international law. It does not make support of those legitimacy claims part of its purpose – quite the opposite. At the very least, its aims and interests are orthogonal to the legal legitimacy of international law. Take, for example, Chris Jochnick and Roger Normand’s critical history of the international laws of war.65 They argue that laws of war, instead of limiting wartime humanitarian destruction, have actually allowed nations to expand the scale and scope of permissible combat under the veil of military necessity. According to this theory, by formally codifying laws of war – often with great fanfare – governments have legitimated their military practices in the eyes of their publics. David Kennedy’s string of articles from the 1990s captured the mood of this school when he described the project of telling the story of international law. It was, Kennedy concluded, like writing the history of an illusion.66 The critical view of the field – viewed as if from the outside – has produced some of the most challenging work in the past two decades. In particular, it has catalogued the many competing things that international law can be. International law can be an apology for 64

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Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989); Koskenniemi, supra note 1; Randall Lesafer, Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription, 16 Eur. J. Int’l L. 25 (2005); Tuck, supra note 2; Armitage, supra note 24; Benedict Kingsbury, The Concept of “Law” in Global Administrative Law, 20 Eur. J. Int’l L. 23 (2009). Chris Jochnick & Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. Int’l L.J. 49 (1994). Kennedy, Nineteenth Century, supra note 1, at 105; see also Onuf & Onuf, supra note 2; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2005); Stephen D. Krasner, Sovereignty: Organized Hypocrisy (1999); Christopher R. Rossi, Broken Chain of Being (1998).


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the advancement of the interests of states. It can be a utopian (although doomed) project of revolutionizing the world. It can be the tool of empire. It can offer resources to those seeking to critique imperial authority. It can be a na¨ıve and misconceived expression of idealism in a field of power relations. It can be the vehicle for speaking truth to power in moments of crisis. At different times and in different places, international law has been all these things and more. But if the critical doctrinal histories have brilliantly revealed the many possible implications of international law, it usually requires a different kind of inquiry to make sense of international law’s actual significance at particular historical junctures. That is what the social history of international law promises to accomplish.

B. The Social History of an International Law Institution A third approach consists of what I have called here social histories of international law. The scholars who work in this tradition adopt a very different view of the content of the relevant field from that adopted by both schools of doctrinal history. For the social historian of international law, the relevant field is only partially constituted by the work of jurists and judges. Also relevant is the behavior of actors such as armies and diplomats, as well as the attitudes of voters and nongovernmental interest groups. The method is that of the historian rather than the lawyer. (Historians rather than lawyers write most, although not all, of the work in this tradition.) The social historian of international law takes the scholar’s task to be that of making sense of the social and political significance of international law. The aim is not to sustain the legitimacy of the practice by giving it roots (that is the insider’s game). Nor is it to subvert the field by revealing the artifice and design and indeterminacy of its doctrinal refinements (that is the game to which the critical outsider is partial). Instead the aim is to make sense of the significance of international law in particular times and places. Important examples of recent work in the social history school include the articles of the late great Kenneth Cmiel, whose contributions to the field would have been still greater but for his untimely death. Cmiel brilliantly connected the worldwide success of human rights discourse in the 1970s and 1980s to what he called the “thinness” of its claims. The great success of human rights language, Cmiel argued (and he was deeply sympathetic to the work of human rights organizations), was that its proselytizers figured out how to capitalize on the success of Madison Avenue-style marketing campaigns and imagery.67 Witness, for example, the iconic Amnesty International image of the political prisoner under a guard tower. But Cmiel’s work is not alone. Work by David Armitage, Gary J. Bass, Elizabeth Borgwardt, Christina Burnett, David Hendrickson, Francine Hirsch, Peter Holquist, Isabel Hull, Adam McKeown, Mark Mazower, Sam Moyn, Susan Pedersen, Jennifer Pitts, and many others all fits into the wide and friendly confines of what I am calling here the social history of international law.68 Yet there is still a huge amount of work to be done, and one of the areas that will require attention is the history of international law in the U.S. Supreme Court. What would the social history approach mean for the history of international law in the Supreme Court? Among other things, it would mean focusing on the institutional considerations 67 68

Cmiel, Emergence, supra note 3. See supra pp. 164–65, nn. 2–3.

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that have shaped the Court’s approach to international law. International law has been a mechanism through which the Court has built and sustained its own institutional authority (and the authority of Congress and the Executive as well). In turn, the Court has helped build and sustain the authority of international law. The Hamdan decision69 is perhaps our most recent exemplar of the mutually constitutive dynamic between the Court and international law. But the basic point is about as old as the Court itself. Witness The Paquete Habana in 190070 or Brown v. United States in 1814.71 The examination of international law in the Court also ought to raise interesting questions about the relationship between international law and the advancement of state interests. The insulation of the Article III courts in American constitutional law helps obviate the crudest versions of the realist state interest thesis. But even a quick glance at the ways in which the Marshall Court championed the interests of neutrals at sea or at the way in which the Civil War Court decided the Prize Cases makes it clear that perceptions of state interests – state interests properly understood and institutionally mediated – are central to the history of international law in the Court. Properly understanding state interests will mean remembering that perceived state interests are themselves to some extent a function of international law norms; understanding the institutional mediation of state interests will require attention to such things as the time lags between Presidents and the courts. Given the selection process and tenure of federal judges, the courts (and the Supreme Court in particular) tend to encapsulate the constitutional logic of earlier electoral cycles. For this reason among others, the Court’s conception of the interests of the United States will not match up perfectly with the executive branch’s conception of those interests.72 (That is why in 1863 Lincoln appointed Stephen Field as the tenth Justice!) Sometimes international law in an insulated Court is an obstacle to the executive branch’s sense of American interests. At other times, the Court’s institutional insulation proves a useful asset to the Executive, as it did for President George Washington during the 1790s when U.S. diplomats were able to hold off demands by the French that the United States intercede in prize controversies. (How could the President intervene on behalf of French vessel owners, they explained to the French ambassador, when the President had such limited authority over Article III courts in the American constitutional system?)73 The point I want to make here is not that any one of these historical dynamics is the only way or even the best way to make sense of the significance of international law in the U.S. Supreme Court. The point on which I want to insist is that these questions about the social significance of international law in the Court are the ones that a sophisticated body of scholarship about international law in the Court will have to begin to ask.74

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Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 175 U.S. 677 (1900). 12 U.S. 110 (1814). On the intertemporal confusion created by the American Constitution’s system of fragmented government, see Stephen Skowronek & Karen Orren, Institutions and Intercurrence, Theory Building in the Fullness of Time, in Nomos XXXVIII 111 (Ian Shapiro & Russell Hardin eds., 1996). See David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 St. Louis U. L.J. 145 (2008); Gregg L. Lint, Early American Conceptions of International Law and Their Influence on Foreign Policy: 1776–1803 (1975) (Ph.D. dissertation, Michigan State University). One nice recent example of the kind of work that can be done in the field is John Hepp, James Brown Scott and the Rise of Public International Law, 7 J. Gilded Age & Progressive Era 151 (2008).


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We can see halting versions of this move in the chapters here. Professors Lee and Sloss present a picture of international law in the Court that asserts a social goal for the Court’s international law work. The Court, Lee and Sloss tell us, “promoted compliance with the nation’s international legal obligations.”75 Yet Lee and Sloss give us little evidence that would substantiate this thesis. I find myself more than a little skeptical that this is the best way to think of the Court’s aims; it seems to turn the Court into an adjunct to the late-nineteenth-century American Peace Society, which it assuredly was not.76 But the important thing is that institutional functions are exactly the kind of thing we should want the history of international law to identify. Has the Court in its international law cases sought to advance a conception of international peace? Has it sought to promote its own institutional authority? The commercial or military interests of the nation or some subset of the nation? Democratic self-government? Something else? These are good historical questions! Professors Lee and Sloss also intriguingly suggest that in wartime the Court has used international law as a mechanism for enabling state authority that otherwise could not be mobilized under domestic law limitations.77 They do not have occasion to follow up on this claim, but the argument is potentially an important one. (And one that on the surface I find more plausible than their international compliance claim; the two arguments are somewhat at loggerheads.) Looking elsewhere in the volume, we see that Professor Roger Alford’s chapter on the first half of the twentieth century posits a similar non-insider logic. Alford’s claim that the Supreme Court’s practice in international law advanced the interests of the United States78 puts it a bit baldly. Given the institutional considerations I described earlier, and given the relative autonomy of international law traditions, the Alford thesis seems to me a bit too crude, at least as an account of the second half of the nineteenth century. Professor Alford adopts a blunt instrument where a scalpel would cut a finer, more nuanced line. Take Professors Lee and Sloss’s discussion of the Prize Cases for example.79 The blockade decision of the Lincoln administration and its affirmance by the Court may be explicable by some version of a state interest thesis. But even if that is so, the international law categories invoked by Lincoln and then by the Court had all sorts of entailments that cannot be accounted for by reference to state interests. Choosing a blockade – a tool from international law – had implications for Lincoln’s subsequent course of action. Lincoln may have been at his most cynical about international law when choosing to style his actions as a blockade. But even here, we see international law shaping the course of events.80 I have to confess, though, that even when it is put a bit too strongly, there is something bracing about the realist logic recessive in Professors Lee and Sloss’s chapter and given freer reign by Professor Alford, especially when contrasted with the doctrinalism of insider histories. Yes, perhaps these accounts go too far in the externalist direction. Yes, perhaps they fail to observe the significance of international law as one social practice among many. But to my mind they have made a start. Right or wrong, at least realism is a claim about the connection between law and society. 75 76 77 78 79 80

Chapter 4, p. 161. On the peace societies, see Merle Curti, The American Peace Crusade, 1815–1860 (1929); Charles DeBenedetti, The Peace Reform in American History (1980). Chapter 4, pp. 144–46. Chapter 8, pp. 257–58. Chapter 4, p. 140. See Symonds, supra note 36.

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C. Toward a Social History of the Court and International Law in the Late Nineteenth Century So far in this chapter I have criticized what I take to be the dominant mode of international law history. And I have made a series of suggestions for how the history of international law in the U.S. Supreme Court might look. I have suggested that the central questions ought to revolve around the social significance of the institution in international law. In particular, I have offered a number of possible starting points for future research in what I have styled the social history of international law in the Supreme Court: r How did institutional considerations about the Court shape its approach to international law? r What effects have perceived national security concerns had on the Court’s decisions involving international law? r What role did professionalization of the field of international law play in the Court’s international law engagements, and what role did the Court play in the professionalization of the field? r In what ways did the U.S. Supreme Court serve as a model for ideas about international judicial bodies?

I should emphasize that this is hardly an exhaustive list, but merely a small subset of the possible future lines of research. Such research ought to yield important insights, if only because international law inside the Court contributed to two of the most significant historical developments in American society during the second half of the nineteenth century. For a half-century after the war, American institutions worked to stitch back together the nation that had been torn apart by the Civil War. There has been considerable attention to this process in recent historical literature, often with an eye to the sad ways in which the reconciliation of North and South took place at the expense of the former slaves. But the Supreme Court and international law played an underappreciated role in that process. The second development was the growth in the power of the post–Civil War federal government. The increasing authority of the federal government was one of the most significant historical developments in American society during the second half of the nineteenth century. And once again international law and the Supreme Court played an underappreciated role in expanding the capacity of the American state. 1. Reconstruction Property Claims: One of the least studied and most difficult to grasp areas of the Supreme Court’s post–Civil War docket consists of the claims cases brought by former inhabitants of the Confederate States of America seeking the restoration of property captured or confiscated by the United States during or immediately after the war. Daniel Hamilton’s recent book on the subject shows that many of the most important cases were decided by reference to the international laws of war.81 Miller v. United States, decided in 1870, presented a challenge to the Second Confiscation Act on the grounds that it violated the property and jury trial rights of the Fifth and Sixth Amendments to the U.S. Constitution.82 Justice William Strong held otherwise. 81 82

Daniel W. Hamilton, The Limits of Sovereignty: Property Confiscations in the Union and Confederacy during the Civil War (2007). Miller v. United States, 78 U.S. 268 (1870).


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In Strong’s view, the Confiscation Act was justified by the government’s war power. Capture of enemy private property, Strong contended, had “always . . . been an undoubted belligerent right.”83 Justice Field, however, did doubt that assertion. In dissent, Field argued that the laws of war did not authorize the capture of enemy private property. To the contrary, he quoted Henry Wheaton for the proposition that “by the modern usage of nations, which has acquired the force of law,” private property on land was generally “exempt from confiscation.”84 The question whether to uphold the Civil War confiscation system thus turned on a debate about international law. Yet if Miller followed the general guidance of the Prize Cases and upheld the Confiscation Act, the legislation at issue in Miller turned out to be less significant than it seemed. Lincoln had doubted the wisdom of the Second Confiscation Act from its very start. Much to the dismay of the Radical Republicans in Congress, it was barely enforced. The vast majority of southern property taken into federal possession during the war came not under the Confiscation Acts and the war power, but under 1863 legislation governing abandoned and captured lands. In these much more important cases, as Daniel Hamilton has explained, the Supreme Court in the 1860s and 1870s turned back congressional efforts to seize southern property.85 And in doing so it relied once again on the international laws of war. In United States v. Padelford86 and United States v. Klein,87 the Court ruled that pardoned Southerners could claim the restoration of property taken from them under the legislation regarding abandoned and captured lands. The Court reasoned that the federal government had not taken title to southern property at all. Why? As the Court put it in Klein, the Union had followed “to the fullest extent the humane maxims of the modern law of nations, which exempt private property of non-combatant enemies from capture as booty of war.”88 In the space of a year, the Court had cited what Justice Strong claimed was a rule supporting the capture of private property and then what Chief Justice Salmon Chase claimed was a rule prohibiting it! Strong cited his supposed rule to sustain the principle of the Second Confiscation Act; Chase cited his to restore the vast majority of captured property – estimated at some 415,000 acres89 – to Southerners pardoned by Lincoln and Johnson. It would be hard to say that the members of the Court who found themselves in the majority in both Miller and Klein (Chase, Nelson, Strong, and the aging Noah Swayne) paid much attention to the purported principles of international law to which they affixed their names. And the effect of their decisions was to affirm the basic doctrines on which Lincoln and the Union had relied to win the war, while freeing white southern property holders from the threat of mass property reallocation. The Court was playing its role in what the historian David Blight has described as “race and reunion” – the process by which North and South put aside the conflict of the Civil War and moved forward, usually at the expense of the former slaves.90 2. Plenary Power: If international law formed the framework in which Americans resolved the problem of property rights in the South and addressed some of the lingering 83 84 85 86 87 88 89 90

Id. at 305. Id. at 317. Hamilton, supra note 81, at 141. 76 U.S. 531 (1869). 80 U.S. 128 (1872). Id. at 137. James G. Randall, Constitutional Problems under Lincoln 341 (Univ. of Illinois Press 1951) (1926). David W. Blight, Race and Reunion: The Civil War in American Memory (2001).

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tensions from the war, it also supplied a surprising amount of the legal authority to the increasingly powerful post–Civil War American state. Sarah Cleveland’s work has been especially important in drawing attention to the role of international law in the late-nineteenth-century Court. In 1884, the Court in Juilliard v. Greenman (one of the legal tender cases) upheld the authority of the federal government to make U.S. notes legal tender for the payment of all private debts.91 How? By relying on an international law idea. Creating legal tender, wrote Justice Horace Gray for the Court, was “a power universally understood to belong to sovereignty.”92 It was “one of the powers belonging to sovereignty in other civilized nations,” and as such it belonged to the federal government of the United States unless it had been specifically withheld by some constitutional provision.93 Two years later, in United States v. Kagama, the Court upheld the authority of the federal government to prosecute members of Indian tribes for crimes committed on Indian lands against members of the same tribe.94 The federal government’s power to do so, ruled Justice Samuel Miller for the Court, arose “not so much” from any one clause of the Constitution “as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the national government.”95 Juilliard and Kagama seemed to have little to do with one another (legal tender and Indian jurisdiction!), except in one crucial respect. The two cases sustained the authority of the federal government in otherwise murky constitutional areas and did so in a fashion that seemed to reverse the traditional view that the federal government’s powers were limited to those enumerated in the Constitution itself. Here was a constitutional method that promised to lead to a federal government not unduly hobbled by archaic eighteenthcentury enumerated powers thinking. And it was a constitutional method that relied heavily on international law to supply its legal basis. One of the most important areas in which the Court deployed international law to supply the deficits left by the Constitution’s enumerated powers was immigration policy. Here Chae Chan Ping v. United States, decided in 1889, was an important early case.96 In Chae Chan Ping, Justice Field upheld provisions of the Chinese exclusion legislation of the 1880s. Field’s decision reads like a chronicle of the rise of a confident and muscular American relationship with China, from the first treaty in 1844 right up through the 1880s. Field’s conception of the United States’ engagements in the Pacific was as a nation engaged in a high-stakes contest with powerful rivals. Not surprisingly, his decision upheld Congress’s exclusion of Chinese immigrants as a product of those powers that all nations possessed by virtue of being nations under international law. Field wrote for the Court that control over immigration was “an incident of sovereignty.”97 Three years later, in the context of an immigration case involving a woman from Japan, Justice Gray elaborated the same point. “It is an accepted maxim of international law,” wrote Gray in his decision for the Court in Ekiu v. United States, “that every sovereign 91 92 93 94 95 96 97

110 U.S. 421 (1884). Id. at 447. Id. at 450. 118 U.S. 375 (1886). Id. at 380. 130 U.S. 581 (1889). Id. at 609.


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nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”98 A year after Ekiu, Justice Gray and the Court applied the doctrine that immigration powers were “inherent in sovereignty” to allow even the deportation of foreigners who had lived legally in the United States for years. As Cleveland notes, the U.S. Supreme Court’s reliance on international law to sustain Congress’s immigration decisions quickly proved influential not just in the United States but also abroad. Just a few years later, British courts cited Chae Chan Ping as establishing an international law right of sovereign states to exclude aliens returning to a sovereign state in which they had once lived legally.99 Cleveland explains the plenary powers doctrine as the product of a Court committed to the advancement of “nativist authoritarianism in the Gilded Age.”100 A slightly different way of describing the same process would be to call the international law of the latenineteenth-century Supreme Court one of the ways in which the United States engaged in the process of what political scientists such as Stephen Skowronek have called “statebuilding.”101 In the Reconstruction cases the Court facilitated the process of sectional reconciliation at the expense of the former slaves. In plenary power cases involving legal tender, Indian reservation jurisdiction, and immigration, the Court consolidated the national power that a strong and prosperous nation seemed to require in the era of the late nineteenth century. In expanding the jurisdiction of the federal government, the Court was able to rely on a longstanding tradition in American legal thought. For the position the Court sketched out in Juilliard, Kagama, and Chae Chan Ping was essentially the position that Alexander Hamilton had sketched out a century before on the relationship between international law and the authority of the federal government. We can see the beginnings of the relationship between international law and the plenary power of the federal government as early as Hamilton’s arguments in Rutgers v. Waddington in 1784. We can see it in his defense of American neutrality in 1793. And we can see it in his defense of the Jay Treaty and in his Federalist colleagues’ defense of the Alien Friends Act in 1798. Time and again, the chief proponent among the Framers of a strong federal government had turned to international law.102 Now three-quarters of a century after his death, the Court seemed intent on reviving Hamilton’s views. As the United States was coming into its own in terms of global power, international law offered the Court resources for playing a 98 99 100 101 102

Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). Cleveland, supra note 1, at 132–33. Id. at 256. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (1982). Alexander Hamilton, The Rutgers Briefs, in 1 The Law Practice of Alexander Hamilton 338–418 (Julius Goebel, Jr. ed., 1964); Alexander Hamilton, Pacificus No. I (1793), reprinted in 15 The Papers of Alexander Hamilton 33–43 (Harold C. Syrett et al. eds., 1969) (neutrality in 1793); Alexander Hamilton, The Defense (Camillus) No. XX (1795), reprinted in 19 The Papers of Alexander Hamilton 329–47 (Harold C. Syrett et al. eds., 1973) (Jay Treaty); James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties 71 (1966) (Alien Friends Act); Gerald L. Neuman, Whose Constitution?, 100 Yale L.J. 909, 935 (1991) (same); see also Morton J. Frisch, Introduction to The Pacificus-Helvidius Debates of 1793–1794 (Morton J. Frisch ed., 2007); Stephen Rosen, Alexander Hamilton and the Domestic Uses of International Law, 5 Dipl. Hist. 183 (1981).

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part in making the United States into the kind of modern power Hamilton had dreamed the United States would one day become.

∗

∗

∗

If we put the Reconstruction property restoration claims together with the plenary power cases, a picture begins to emerge of the Supreme Court and international law in American social life in the late nineteenth century. The Court was not merely hosting dry and abstract juristic debates about the formal legal doctrines of international law. It was also engaged in some of the central social controversies of its day. And international law principles supplied a key piece of the framework for analyzing those controversies. As I have said, there are no doubt any number of ways one could write the social history of international law in the Supreme Court in the late nineteenth century. What is significant about these two episodes in the history of international law in America is that one cannot possibly begin to make sense of them except by reference to the social debates in which they took part.

IV. Conclusion Paul Kahn has recently argued that too many lawyer-historians in the field of international law imagine their role as being “to aid in the progressive realization of an order of international law.”103 In their capacity as historians of the field, Kahn’s international lawyers adopt the insider perspective I have sketched here. The difficulty with the insider posture toward the history of international law, however, is that it involves the observer in the system he or she purports to be studying. As Kahn puts it, scholars who adopt this posture are captured by the object they are supposed to study.104 What we need (in Kahn’s words) is “to study international law as a social practice and a system of belief.”105 The kinds of questions we will need to ask are not those about the evolving legal basis of international legal norms (naturalism or positivism), but questions about international law as a social phenomenon. Kahn’s provocative question is to ask what the relationship is between the proliferation of international law norms in the twentieth century, on the one hand, and the advent of unconstrained total warfare, on the other. We could ask other questions, of course. For example, we could ask questions specifically about the U.S. Supreme Court. Regardless what we ask about in particular, the most illuminating questions will be ones that seek to make sense of international law (and the Court) in society. They will be questions about the social histories of international law. The social history project I have sketched out here entails some risk, of course. From the perspective of the insider-scholar, whose aim is to preserve and promote the coherence and virtue of international law, history can be a dangerous project. Good legal history in other fields of the law has tended to be subversive. By revealing the inevitably partial and political origins of legal norms, for example, history undermines the law’s claim to a legitimacy that rests on the basis of neutrality.106 The history of science faced the same 103 104 105 106

Kahn, supra note 55, at 109. Id. at 103. Id. at 109. On the subversiveness of legal historical scholarship, see Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L.J. 1017 (1981). Mark Mazower has it right when he argues that “[l]awyers . . . tend to


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problem after its Kuhnian turn. But few doubt that the Kuhnian turn in the history of science has been vital to making sense of the history of the natural sciences.107 Historians of the sciences now routinely treat their field as a social practice embedded in politics and culture. Historians of the science of international law must do the same. As in the history of science, doing the social history of international law would mean throwing open the doors of the church of international law to the unwashed masses, the untutored hordes, the demagogues, and all that comes with them (including unruly historical commentators). It would mean conceding that in difficult cases, international legal norms (like virtually all legal norms) are contested and controversial and powerfully reshaped by imperatives that are in substantial part external to the legal materials. But if there are risks, the rewards may be immense. There is little reason to think that the Kuhnian turn in science has undermined the authority of the scientific endeavor. Far from it! By adopting the insider perspective, by limiting its purview to lawyers’ questions and lawyers’ materials, the insider approach to the history of international law has often tacitly ceded much of the field to the philistines. Is it any wonder that the history of international relations is so often dismissive of the role of international law?108 As the historian of international politics Mark Mazower has put it, “the history of how law has been deployed in international politics” is a scholarly ghetto, or worse: a “ghetto within a ghetto.” Part of the problem is that those who understand international law best have all too often declined to wade into the social thicket and identify the social significance of the practice in which they engage.109 What the social history of international law promises to show is that, for more than two centuries, international law (in and out of the Supreme Court) has helped structure public engagement with many of America’s most pressing problems. How international law has structured that engagement – and how those engagements have restructured international law – is the question for the social history of the field.

107 108

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shy away from any hint that the origins of legal regimes lie in a set of cultural, political, and ideological struggles; their practice is to interpret texts, moving from document to document, rather than to soil themselves with the dirty laundry of backstage diplomatic shenanigans.” Mazower, supra note 3, at 380. See Thomas S. Kuhn, The Structure of Scientific Revolutions (rev. ed. 1969). See, for example, the skeptical treatment in the first few chapters of George Herring’s massive new Oxford history tome on American foreign relations, George C. Herring, From Colony to Superpower: U.S. Foreign Relations since 1776 (2009). Mazower, supra note 3, at 380.

III From the Turn of the Century to World War II

6 Treaties in the Supreme Court, 1901–1945 Michael P. Van Alstine∗

The foreign affairs law of the United States in the decades immediately following the turn of the twentieth century was subject to immense forces of change. Victory in the SpanishAmerican War at the very end of the prior century – and the consequent acquisition of territories from the Caribbean to the western Pacific – represented a definitive moment in the transformation of the United States from a regional to a global power. The country’s dramatic rise as an economic and military force led to an increasing engagement (or entanglement) in world affairs. By the end of World War II the United States was one of only two global superpowers. These events occurred amid a profoundly expanding faith in international legal cooperation and specifically in the regulatory power of treaties. Before the late nineteenth century, treaties usually served to end wars and settle boundaries, with the prominent exception of early treaties of friendship, commerce, and navigation. The years surrounding the turn of the twentieth century, however, witnessed a significant expansion in the field of operation for international treaties. Large and celebrated peace conferences in 1899 and 1907,1 for example, proclaimed solemn treaties designed to regulate the law of armed conflict and to settle international disputes.2 Similar sentiments led to the conclusion of treaties that set the foundation for the later Second and Third Geneva Conventions,3 as well as the Washington treaties limiting naval armaments and the use of submarines and poison gas.4 And in perhaps the ultimate profession of faith after World ∗

1

2

3

4

Professor of Law, University of Maryland School of Law. I thank Nan Bonifant, Tony Torrain, and Zach Shapiro for their excellent, careful work in identifying the treaty cases decided by the Supreme Court in the period 1901–45. See, e.g., Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247; Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631. Toward the end of the nineteenth century, treaty law also expanded to regulate intellectual property. See Convention for the Protection of Industrial Property, Mar. 20, 1883, 13 U.S.T. 2, 828 U.N.T.S. 305; Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 1161 U.N.T.S. 3. Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 6, 1906, 35 Stat. 1885, 1 Bevans 516; Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021, 118 L.N.T.S. 343. Treaty Agreeing to a Limitation of Naval Armament, Feb. 6, 1922, 43 Stat. 1655, 25 L.N.T.S. 202; Convention Relating to the Use of Submarines and Noxious Gases in Warfare, Feb. 6, 1922, reprinted in The Laws of Armed Conflicts 877 (Dietrich Schindler & Jir´ı Toman eds., 1988) (not entered into force).

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War I, the sixty-five parties to the 1928 Kellogg-Briand Pact (including the United States) agreed to a “renunciation of war as an instrument of national policy.”5 At the same time, the United States increasingly turned to treaties to regulate cross-border issues affecting individuals such as immigration,6 citizenship,7 and extradition.8 But treaties also spread to a variety of more prosaic matters of domestic concern, such as conflict of laws and the unification of international commercial law,9 water quality,10 wildlife preservation,11 and drug control.12 By the standard account, these parallel developments propelled a substantial change in the domestic law of the United States. The emergence of the country as an international leader with complicated, dynamic, and increasingly frequent worldwide legal commitments spawned a fundamental shift from local to national law and from legislative to executive preeminence. Proof of this shift commonly comes through citations to certain monumental cases of the era – most notably, Missouri v. Holland,13 United States v. Curtiss-Wright Export Corp.,14 and the duo of opinions that gave legal sanction to sole executive agreements.15 In the influential words of Professor Edward White, during the first half of the twentieth century “the constitutional regime of foreign relations” experienced “a period of radical transformation.”16 One would expect, therefore, to find a sense of imminence, of impending and significant change, in the treaty law of the United States as the nineteenth century gave way to the twentieth. The subject was indeed very much on the academic and political mind of the times. Scholars produced important, comprehensive works on the “treatymaking power of the United States” and its limits,17 efforts that reached their apogee in 5 6 7

8

9 10 11

12 13 14 15 16 17

Treaty Providing for Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, art. 1, 46 Stat. 2343, 94 L.N.T.S. 57. Immigration from China was a common subject of treaties and treaty disputes. See infra pp. 206–7. In the late nineteenth and early twentieth centuries the United States concluded, principally with Western European states, a number of so-called Bancroft Treaties – for their lead negotiator, George Bancroft – that regulated reciprocal rights to naturalization for their citizens. See 3 John B. Moore, A Digest of International Law §§ 390–400 (1906); Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 Emory L.J. 1411, 1428–29 (1997). Dozens of the more than one hundred extradition treaties now in effect for the United States originally came into force in the early twentieth century. See 18 U.S.C. § 3181 note (2009) (listing existing extradition treaties). See Simeon E. Baldwin, The Hague Conference of 1904 for the Advancement of Private International Law, 14 Yale L.J. 1 (1904). Treaty Relating to the Boundary Waters Between the United States and Canada, Jan. 11, 1909, U.S.-Gr. Brit., 36 Stat. 2448. Convention Between the United States, Great Britain, Russia and Japan for the Preservation and Protection of Fur Seals, July 7, 1911, 37 Stat. 1542; Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-Gr. Brit., 39 Stat. 1702. International Opium Convention, Jan. 23, 1912, 38 Stat. 1912, 8 L.N.T.S. 187. 252 U.S. 416 (1920). 299 U.S. 304 (1936). See United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942). G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1, 6 (1999). See Charles Henry Butler, The Treaty-Making Power of the United States (1902) (two-volume treatise); Henry St. George Tucker, Limitations on the Treaty-Making Power Under the Constitution of the United States (1915); Samuel B. Crandall, Treaties: Their Making and Enforcement (2d ed. 1916).


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an influential work by Professor Quincy Wright in 1922.18 As the United States became increasingly enmeshed in global affairs and the field of treaties expanded, the political branches, too, became increasingly aware of their significance. The political branches even manufactured the legal stage for Missouri v. Holland,19 perhaps the most significant opinion of the period. Numerous conflicts that began in the immediate past – between treaties and statutes, over treaty-based rights of foreign citizens, and concerning the acquisition of territory by treaty, for example – likewise continued with vigor in the early decades of the new century. The twin phenomena of increasing activism by the United States and an expanding field of treaty law provided abundant opportunities for the Supreme Court to shape or reshape treaty doctrine. Indeed, on the subject of treaty law, the period from 1901 to 1945 is among the most active ones in the Court’s history. During those years, the Supreme Court handed down well over two hundred opinions that either applied treaties or had something substantive to say about treaty law, together with nearly one hundred other opinions that addressed the specialized attributes of treaties with Native American tribes.20 Careful examination reveals, however, that the treaty jurisprudence of the Supreme Court between 1901 and 1945 is characterized not by headstrong change, but rather by a sense of continuity, consolidation, and completion, as well as a fundamental affirmation of the constitutional status of treaties as law. The Court in this era repeatedly reaffirmed the foundational principles of treaty law, such as the preemptive force of treaties and the duty of courts to apply them as law.21 It also cemented recently recognized precepts, such as the broad substantive scope of the treaty power and the later-in-time rule for conflicts between treaties and statutes.22 Indeed, the Court began the period very much enmeshed in the same conflicts between individual treaty rights and later exclusion statutes (principally directed at China) that had occupied its docket in the preceding two decades. In contrast, the controversial modern question of self-execution barely occasioned comment during the first half of the twentieth century as the Court applied treaties in more than three hundred substantive treaty cases (including those with Native American tribes).23 And even Missouri v. Holland, when more carefully understood against its historical background, largely involved the gathering in one place of principles already recognized in earlier opinions.24 The most distinctive feature of the age came from the Court’s distillation of a largely complete and coherent system of treaty interpretation. In a process that ran throughout the period, the Court reaffirmed a variety of essential interpretive principles, fleshed out inchoate intuitions of the past, and organized the composite result into a better integrated whole.25 As an essential element of this whole, the Court also expressly adopted a 18 19 20 21 22 23 24 25

Quincy Wright, The Control of American Foreign Relations (1922). For more on Wright’s work, see White, supra note 16, at 32–34. 252 U.S. 416 (1920); see also infra p. 199. This count excludes opinions that used the word “treaty” but said nothing of substance about treaty law. A comprehensive list of substantive treaty cases in the period 1901–45 is available from the author. See infra Part I.C.1. See infra Part I.B, D. See infra Part I.C.1. See infra Part I.B.2. See infra Part II.A.

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purposive approach to treaty interpretation designed, fundamentally, to advance amicable relations between the United States and its treaty partners.26 It also firmly endorsed, and repeatedly applied, a presumption in favor of a liberal recognition of individual rights secured by treaties.27 The other noteworthy development in treaty law paradoxically involved the recognition of a presidential power to conclude binding non-treaty agreements. The status of treaties as the predominant form of international legal cooperation ceded ground – out of necessity, pragmatism, and the fiat of Justice George Sutherland – to smaller scale executive agreements concluded without formal Senate consent.28 As a matter of domestic law enforceable in domestic courts, the longer term significance of this development may be limited.29 But as a matter of external affairs, the Supreme Court’s endorsement of sole executive agreements granted the President an expansive power to conduct foreign affairs – and to conclude binding international commitments – without regard to the constitutionally prescribed procedures for the approval of treaties. Ultimately, therefore, the Supreme Court’s treaty jurisprudence in the first half of the twentieth century was marked by two predominant, but almost contradictory, currents. On the one hand, as demonstrated by the sheer volume of cases, treaties in the period were very much a common feature in the positive, domestic law of the United States, with the Court serving as faithful agent in enforcing these international obligations as domestic law. Implicit in this development was a distinct rise of rule of law norms in the Court’s treaty jurisprudence – and an almost routine application of treaties as supreme federal law binding on individuals, the States, and the federal executive branch alike. This point is worthy of special emphasis. In contrast with the era to follow,30 separation of powers concerns about trenching on the prerogatives of the political branches did not feature prominently in the Supreme Court’s treaty jurisprudence of the time, even in public law disputes with the federal government. On the other hand, the Court’s endorsement of sole executive agreements toward the end of the period, as the United States increasingly became enmeshed in world affairs, marked a triumph of pragmatic and institutional values over constitutional text. The predictable result was a substantial expansion of unilateral executive power over foreign affairs.

I. Reaffirmation and Reinforcement: The Constitutional Status of Treaties A. Separation of Powers and the Roles of the President and the Senate The centrality of rule of law norms in the Supreme Court’s treaty jurisprudence in the early twentieth century found expression even in fundamental questions concerning the allocation of authority over the Article II treaty power. To be sure, the Court had only limited opportunities in the period to offer its imprint on this score. Nonetheless, the common theme in its few pronouncements was an emphasis on the distinct powers of the President and Senate in the approval of treaties and the limits of those powers.31 26 27 28 29 30 31

See infra Part II.B. See infra Part II.C. See infra Part III. See infra p. 221. See Chapter 10, pp. 321–31. Because of its significance, Part III analyzes the rise of sole executive agreements separately.


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Perhaps most significant was the Supreme Court’s amplification in United States v. Curtiss-Wright Export Corp. of the President’s Article II power to “make Treaties.”32 There, the broad pen of Justice Sutherland gave judicial sanction to the longstanding constitutional custom that the President alone negotiates treaties.33 Indeed, Justice Sutherland fortified the practice by prohibiting congressional interference.34 The Court elsewhere emphasized the prerogatives that flow from Article II’s delegation to the Senate of the power of “advice and consent” for treaties. A 1906 opinion endorsed the power of the Senate to impose a binding reservation that conditioned the treaty’s domestic legal effect on subsequent approval by Congress as a whole.35 An interesting (and suspect) aspect of this case was that the reservation actually came after the Senate’s original expression of consent.36 Separately, the Court found that subsequent ratification by the President remains an essential act for the legal effect of treaties. Fully consistent with the unique status of a treaty as domestic law founded on international legal obligation, the Court reaffirmed prior holdings that a treaty does not take effect as domestic law until the formal act of ratification by the President under international law.37 Once a treaty is approved and ratified, however, the power of the President to control its force and effect in domestic law comes to an end. The Supreme Court underscored this core principle in some of its most interesting cases of the period. In one much overlooked case, United States v. Minnesota,38 the executive branch sought to undermine a treaty with the assertion that it was “hastily negotiated” by improper representatives of the treaty partner.39 Affirming an 1853 opinion to the same effect,40 the Court refused to question the validity of a treaty properly approved by the Senate and subsequently ratified by the President: Under the Constitution the treaty-making power resides in the President and Senate, and when through their action a treaty is made and proclaimed it becomes a law of the United States, and the courts can no more go behind it for the purpose of annuling it in whole or in part than they can go behind an act of Congress.41 32 33

34

35

36 37

38 39 40 41

299 U.S. 304, 319 (1936). Id. at 319 (stating that “[the President] makes treaties with the advice and consent of the Senate; but he alone negotiates”); see also De Lima v. Bidwell, 182 U.S. 1, 181, 194–99 (1901) (observing that “[a] treaty is negotiated and made by the President”). Curtiss-Wright, 299 U.S. at 319 (declaring that “[i]nto the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it”); see also id. (asserting that the “wisdom” of President Washington in refusing to release drafting documents concerning the 1794 Jay Treaty to the House “was recognized by the House itself and has never since been doubted”). See United States v. Am. Sugar Refining Co., 202 U.S. 563, 576 (1906); cf. Hamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146, 167 (1919) (observing in dicta that “by the Constitution a treaty is only a proposal until approved by the Senate”). See Am. Sugar Refining, 202 U.S. at 576. See Dooley v. United States, 182 U.S. 222, 230 (1901); see also Haver v. Yaker, 76 U.S. 32, 34 (1870) (holding that to the extent a treaty affects private rights as a matter of domestic law it “is not considered as concluded until there is an exchange of ratifications”) (citing United States v. Arredondo, 31 U.S. 691 (1832)). 270 U.S. 181 (1926). Id. at 200. See id. at 201 (citing Doe v. Braden, 57 U.S. 635 (1854)). Id. at 201.

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In the 1933 case of Factor v. Laubenheimer,42 the Court emphasized that this proposition remains true even if the treaty partner adheres to a conflicting view on the force of a treaty. “Until a treaty has been denounced,” the Court declared, “it is the duty of both the government and the courts to sanction performance of the obligations reciprocal to the rights which the treaty declares and the government asserts even though the other party to it holds a different view of its meaning.”43 In contrast, the Supreme Court afforded effectively complete deference to the executive branch on the authority and legitimacy of foreign treaty partners. In accord with its jurisprudence from early in the nineteenth century,44 the Court held in sweeping language that the recognition of foreign governments by the Executive is “conclusive” on the courts.45 The same is true with respect to whether a treaty partner has the power and intention to carry out treaty obligations. As the Court observed in the 1902 case of Terlinden v. Ames, “the question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and . . . the courts ought not to interfere with the conclusions of the political department in that regard.”46 In 1913, Charlton v. Kelly47 put an even finer point on this principle. There, clear Italian domestic law forbade the surrender of Italian citizens to foreign authorities in a manner directly contrary to an extradition treaty with the United States. The Supreme Court nonetheless held that, although this “would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. . . . It was only voidable, not void.”48 Because the political branches had not chosen to denounce the treaty, the Court reasoned, “it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land.”49 A curious opinion by Justice Sutherland, however, found that this principle did not hold for treaties of amity and commerce in the event of a subsequent war. In Karnuth v. United States,50 the Supreme Court addressed the continuing effect of a “free trade and commerce” provision in the 1794 Jay Treaty. Writing for the Court, Justice Sutherland reasoned that, because such a provision was founded on peaceful relations and was “wholly promissory and prospective,” it “was brought to an end by the War of 1812.”51 It is difficult to harmonize this holding with the deference otherwise granted the political branches on the continued effect of treaties, but the Court in Karnuth directly held that an individual whose claim arose after the War of 1812 could not rely on rights expressly secured in the Jay Treaty. 42 43 44 45

46 47 48 49 50 51

290 U.S. 276 (1933). Id. at 298. See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1, 40 (1831). See Guar. Trust Co. of N.Y. v. United States, 304 U.S. 126, 137–38 (1938) (holding that “[w]hat government is to be regarded here as representative of a foreign sovereign state is a political rather than judicial question” and that the action of the State Department in so recognizing a foreign government “is conclusive on all domestic courts”); Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (same). 184 U.S. 270, 288 (1902). 229 U.S. 447 (1913). Id. at 469–73. Id. at 476. This principle is of ancient vintage. See Ware v. Hylton, 3 U.S. 199, 260 (1796) (Iredell, J.); Chapter 1, p. 17. 279 U.S. 231 (1929). Id. at 239–41.


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The Court in the period 1901–45 otherwise steered clear of deciding which branch of government has the power to terminate treaties, although it had the opportunity to pronounce on the issue in Van Der Weyde v. Ocean Transport Co.52 Congress, by the Seaman’s Act of 1915, had determined that inconsistent provisions of treaties “ought to be terminated” and “directed” the President to notify treaty partners of the termination.53 The Court found that Congress may in this way properly authorize the President to terminate a treaty and indeed that in such a case it is “incumbent upon the President” to do so.54 But the express authorization also allowed the Court to avoid the principal issue. It simply found that, in light of the congressional assent by statute, it did not need to decide whether the President had an independent power to terminate treaties.55 Separation of powers principles were also at the foundation of another common theme in the Supreme Court’s treaty jurisprudence during the first half of the twentieth century: the absence of a unilateral executive power of extradition. The Court first made clear that the power to expel individuals is exclusively a national one.56 Nonetheless, citing “the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual,”57 the Court repeatedly held that, without congressional authorization by treaty or statute, the President does not have an independent power to deliver individuals – even noncitizens – to foreign authorities.58 A final opinion on the role of separation of powers principles in treaty law, Fok Young Yo v. United States,59 is worthy of special emphasis. That case – which thus far has been almost entirely overlooked – addressed the effect of regulations issued by the executive branch under an 1894 immigration treaty with China.60 An article in the treaty provided that an individual transit right was “subject to such regulations by the government of the United States” as may be necessary to prevent abuse.61 The constitutional limits on statutory delegation of lawmaking power to the executive branch were a matter of much controversy at the time,62 although United States v. Curtiss-Wright Export Corp. later cleared an especially broad field in matters of foreign affairs.63 But in Fok Young Yo, the Court held – in what may be the only explicit recognition of the principle64 – that 52 53 54 55 56 57 58

59 60 61 62

63 64

297 U.S. 114 (1936). Id. at 116. Id. at 117–18. Id. at 118. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (holding that extradition is a power that “pertains to the national government and not to the states”). Id. at 8. See Tucker v. Alexandroff, 183 U.S. 424, 431–34 (1902) (holding that there is no power or obligation to deliver deserting seamen of a foreign country in the absence of an international treaty or domestic statute); Valentine, 299 U.S. at 8 (holding that the power of extradition “is not confided to the Executive in the absence of treaty or legislative provision”); Factor v. Laubenheimer, 290 U.S. 276, 296–98 (1933) (same). 185 U.S. 296 (1902). Convention on Emigration art. III, Mar. 17, 1894, U.S.-China, 28 Stat. 1210. Id. art. III. The two most prominent instances in which the Supreme Court found a delegation unconstitutional came in the first half of the twentieth century. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935); Pan. Ref. Co. v. Ryan, 293 U.S. 388, 415 (1935). 299 U.S. 304 (1936). In a few cases the Court has recognized that a treaty may grant decision-making authority to the executive. See Fong Yue Ting v. United States, 149 U.S. 698, 714 (1893) (“It is no new thing for the law-making power, acting . . . through treaties made by the President and Senate . . . to submit the decision of questions, not necessarily of judicial cognizance . . . to the final determination of executive officers[.]”); Barclays Bank

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a treaty may also validly delegate implementing authority to the Executive: “We regard [the provision at issue] as explicitly recognizing existing regulations, and as assenting to their continuance, and to such modification of them as might be found necessary to prevent abuse. It dealt with the subject specifically, and was operative without an act of Congress to carry it into effect.”65

B. Continuity Confirmed: The Broad Substantive Scope of the Treaty Power The scope of the treaty power is commonly taken as one of the defining issues of treaty jurisprudence in the first half of the twentieth century. But Geofroy v. Riggs had already staked out a nearly unlimited substantive scope for the treaty power toward the end of the prior century.66 The opinions in the period 1901–45 served only to cement this broad view. As early as the 1901 case of De Lima v. Bidwell,67 the Supreme Court reiterated that the scope of the treaty power is not constrained by any express substantive limitations: The treaty-making power is as much a constitutional power as the legislative or judicial powers. It is a supreme attribute of sovereignty, but often less determined in its exercise than others. . . . The kind or direction of its exercise cannot always be predicted or marked. There can be no verbal limitations upon it, and, wisely, none were attempted.68

A series of cases running throughout the period confirmed this core constitutional principle. Channeling Geofroy, and often quoting the case itself, these cases repeatedly affirmed that the treaty power “is not limited by any express provision of the Constitution”69 and thus “is broad enough to cover all subjects that properly pertain to our foreign relations.”70 To be sure, the Court reiterated the force of express constitutional prohibitions71 (although one interesting case left open the possibility denied in Geofroy that a treaty could divest a State of sovereignty over land).72 But it otherwise cleared a nearly boundless field for exercises of the treaty power, subject only to the

65 66

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71

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PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329 (1994) (mentioning the possibility that the executive may receive “authority delegated by . . . a ratified treaty”); see also Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 UCLA L. Rev. 309, 359–66 (2006) (analyzing the proposition). 185 U.S. at 303–04. The Court there declared that, with the exception of express prohibitions in the Constitution itself, “it is not perceived that there is any limit to the questions which can be adjusted [by treaty] touching any matter which is properly the subject of negotiation with a foreign country.” 133 U.S. 258, 267 (1890). 182 U.S. 1 (1901). Id. at 218. Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (citing Geofroy, 133 U.S. at 267); see also Asakura, 265 U.S. at 341 (holding that treaty power “extend[s] to all proper subjects of negotiation between our government and other nations”). See Asakura, 265 U.S. at 341 (“The treaty-making power of the United States . . . does not extend ‘so far as to authorize what the Constitution forbids.’”) (quoting Geofroy, 133 U. S. at 267); cf. Grogan v. Hiram Walker & Sons, 259 U.S. 80, 88–90 (1922) (holding that the Eighteenth Amendment prohibiting the “transportation” of intoxicating liquors superseded transshipment rights in a treaty with Great Britain). In United States v. Minnesota, 270 U.S. 181, 207–09 (1926), the United States claimed that certain treaties concluded after Minnesota joined the Union had divested the State of sovereignty over certain land. The Court stated that it was “not now prepared to hold” that a treaty could accomplish this, but held that “no treaty should be construed as intended to divest rights of property – such as the state possessed in respect of these lands – unless the purpose so to do be shown in the treaty with such certainty as to put it beyond reasonable question.” Id. at 207–09.


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thin (if not tautological) condition that a treaty with foreign powers must have some connection to foreign relations.73 These early pronouncements on the scope of the treaty power found definitive confirmation in the Court’s 1920 opinion in Missouri v. Holland – almost certainly the most famous treaty case of the first half of the twentieth century. It is thus worthy of a more extended analysis. Nonetheless, a careful review of the contemporary jurisprudential field reveals that Missouri v. Holland actually plowed very little new constitutional ground. The enduring value of the opinion instead arises from the fact that it collected in one place, and then rationalized into a coherent whole, a variety of already wellestablished principles. In the process, it definitively resolved longstanding controversies over States’ rights and similar claimed limitations on the scope of the treaty power,74 although scholars continue to debate the subject to this day.75 The factual background of Missouri v. Holland has been subject to extensive analysis elsewhere.76 A short summary thus will suffice here. The case arose from a carefully orchestrated constitutional contest between reserved States’ rights and national powers derived from a migratory bird treaty. Lower federal courts had invalidated earlier federal legislation on migratory birds77 based on the substantive limits of the Commerce Clause.78 To address this concern, the Senate in 1913 adopted a resolution calling for the negotiation of a treaty as a basis for further legislation.79 The Wilson administration obliged and concluded a migratory bird treaty with Great Britain (acting on behalf of Canada) in 1916.80 The Senate promptly gave its consent under Article II, and the parties ratified the treaty the same year. In conformance with the very purpose of the enterprise, the treaty expressly obligated the parties “to take, or propose to their respective appropriate law-making bodies, the necessary measures for insuring [its] execution.”81 On this foundation, Congress adopted the Migratory Bird Treaty Act of 1918,82 which, among other things, empowered the Secretary of Agriculture to establish implementing regulations. 73

74 75

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79 80 81 82

One significant application of this broad view, which shows the continuity that marked the era, came on the subject of the acquisition of territory. In the most important of the Insular Cases early in the century, the Supreme Court reaffirmed the principle – stated as early as 1828 by Chief Justice Marshall, see American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 542 (1828) – that the United States may acquire territory through the vehicle of a treaty. See De Lima v. Bidwell, 182 U.S. 1, 194–96 (1901); see also Downes v. Bidwell, 182 U.S. 244, 268–69 (1901); Dorr v. United States, 195 U.S. 138, 139–42 (1904). Indeed, the Court observed in De Lima that “[o]ne of the ordinary incidents of a treaty is the cession of territory.” 182 U.S. at 196. For contrasting views at the time, compare Butler, supra note 17, at 6 (arguing against federalism limits on the treaty power), with Tucker, supra note 17, § 297, at 339 (advancing a contrary argument). See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000); Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 Colum. L. Rev. 403 (2003). See White, supra note 16, at 62–77. 37 Stat. 828, 847 (1913). See United States v. McCullagh, 221 F. 288 (D. Kan. 1915); United States v. Shauver, 214 F. 154 (E.D. Ark. 1914). The Court’s Commerce Clause jurisprudence was quite restrictive at the time. See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) (declaring a federal child labor law unconstitutional because it regulated a purely “local” matter beyond the scope of authority under the Commerce Clause). 50 Cong. Rec. 2339–40 (1913). Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-Gr. Brit., 39 Stat. 1702. Id. art. VIII. 40 Stat. 755.

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Completing the choreographed constitutional stage play, the State of Missouri then brought suit to enjoin application of the resultant regulations, arguing that the Migratory Bird Treaty Act impermissibly encroached on the reserved power of the States. Given its prominence, the opinion in Missouri v. Holland is remarkable for its brevity. It is also remarkable because its famous author, Justice Oliver Wendell Holmes, Jr., otherwise was a relatively minor player in the development of treaty law. Justice Holmes’s opinion upholding the Migratory Bird Treaty Act was founded on three interrelated principles: (1) if the treaty itself is valid, “there can be no dispute about the validity of the [implementing] statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government;”83 (2) an otherwise valid Article II treaty is not subject to the general reserved powers of the States as reflected in the Tenth Amendment; and (3) the treaty power is broad enough to encompass the subject of migratory birds. Although little noted, the Supreme Court had established the first of these propositions nearly two decades before Missouri v. Holland. In the 1901 case of Neely v. Henkel,84 the Court found that, by virtue of the Necessary and Proper Clause, Congress may legislate on the foundation of a treaty as long as the treaty itself is valid: The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in § 8 of article I. of the Constitution as all others vested in the government of the United States, or in any department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.85

The specific issue in Neely was whether Congress had the power to authorize extradition to Cuba even though Cuba was still under the administration of the United States after the Spanish-American War. In answering this question, the Court made clear that it was not necessary to address whether Congress would have had an independent power to do so. Rather, the Court declared, “It is quite sufficient in this case to adjudge, as we now do, that it was competent for Congress, by legislation, to enforce or give efficacy to the provisions of the treaty made by the United States and Spain with respect to the island of Cuba and its people.”86 The latter two propositions essential to the holding in Missouri v. Holland, although distinct, proceed from the same conception of the treaty power in the structure of the Constitution. And indeed, Justice Holmes’s straightforward, almost syllogistic, opinion in large measure reasons that the Court’s already well-established jurisprudence on the scope of the treaty power implicitly resolves the question of the reserved powers of the States. The critical argument on behalf of States’ rights flowed from the logic that the treaty power is subject to the limits of the Constitution and that one such limit is that “what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do.”87 That premise would seem to find a foundation in 83 84 85 86 87

252 U.S. at 432. 180 U.S. 109 (1901). Id. at 121. Id. 252 U.S. at 432.


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Geofroy’s declaration that the treaty power does not extend “so far as to authorize what the Constitution forbids.”88 But as Justice Holmes observed at the very outset of his analysis, the Migratory Bird Treaty at issue in Missouri v. Holland did not conflict with “any prohibitory words” in the Constitution.89 The States’ rights challenge thus distilled, as Justice Holmes described in his most quotable of phrases, into whether the treaty “is forbidden by some invisible radiation from the general terms of the Tenth Amendment.”90 Justice Holmes reasoned, however, that this reservation of authority only functions by default: [I]t is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article 2, Section 2, the power to make treaties is delegated expressly, and by Article 6 treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land.91

The essential point here is that the Article II treaty power represents a delegation of authority to the national government that is separate and distinct from that in Article I.92 This does not mean, Justice Holmes emphasized, that the treaty power is not subject to any limitations at all.93 But the limitations “must be ascertained in a different way.”94 Beyond this (admittedly valuable) conceptual point about the distinct status of the treaty power, the opinion in Missouri v. Holland reflects a straightforward application of established principles. The Supreme Court had long ago resolved the proper scope of the treaty power in Geofroy v. Riggs and its early twentieth-century progeny.95 Indeed, a comprehensive treatise on the treaty power from 1902 declared that the Supreme Court had “on numerous occasions” already “certainly” rejected the view that the treaty power is subject to the otherwise applicable limits on the legislative powers of Congress.96 Justice Holmes also expounded in Missouri v. Holland about the nature of the Constitution as an evolving “organism.”97 His opinion makes clear that, for him, the issue in dispute was surprisingly easy. Citing cases from as early as a century before, he noted that the Court had repeatedly enforced treaties that regulated local affairs that were otherwise solely within the lawmaking competence of the States: “[T]he great body of private relations usually fall within the control of the State but a treaty may override its power.”98 From their very nature, these cases had long ago implicitly rejected the notion that the reserved powers of the States somehow limit the substantive scope of the treaty power. 88 89 90 91 92

93 94 95 96 97

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133 U.S. 258, 267 (1890). 252 U.S. at 433. Id. at 433–34. Id. at 432. See id. at 433 (emphasizing that “[a]cts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States”). See id. (“We do not mean to imply that there are no qualifications to the treaty-making power[.]”). Id. at 433. See supra pp. 198–99. Butler, supra note 17, at 382–83. See 252 U.S. at 433 (observing that “we must realize that the [words of the Constitution] have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.”). Id. at 434.

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All that remained, therefore, was “the application of established rules to the present case.”99 And whatever its outer limits, the treaty power certainly extended to “a national interest of very nearly the first magnitude.”100 Foreshadowing an observation by the Court only a few years later that the treaty power “extend[s] to all proper subjects of negotiation between our government and other nations,”101 Justice Holmes concluded that the national interest in safeguarding migratory birds “can be protected only by national action in concert with that of another power.”102

C. The Constitutional Status of Treaties in Law: The Role of the Courts as Faithful Agents in the Domestic Enforcement of Treaties The most pronounced demonstration of the continuity of treaty law in the first half of the twentieth century comes in the Supreme Court’s unquestioning adherence to the constitutional status of treaties as supreme federal law. Indeed, with well over three hundred treaty opinions in the period, the application of treaties was a routine part of the Court’s docket. Only rarely did the Court even pause to consider the standards for determining which treaties function as immediately enforceable law or whether special rules should apply for the enforcement of individual rights by domestic courts. The dominant tenor of treaty jurisprudence in the era was one of the Supreme Court acting as a faithful constitutional agent in the enforcement of international commitments in domestic law. Perceiving a special responsibility to ensure that treaties were “faithfully kept and observed,”103 the Court applied treaties with equal vigor for and against individuals, the States, and – unlike in the latter half of the twentieth century104 – even in public law disputes with federal government. 1. Treaties as Judicially Enforceable, Supreme Federal Law and the Absence of Separation of Powers Concerns over Self-Execution: The treaty law of the first half of the twentieth century was marked by a straightforward application of treaties as the “supreme Law of the Land.”105 The cases are legion in which the Supreme Court simply cited that constitutional status and then moved forward with an application of the terms of the treaty.106 What is striking is the absence of any serious engagement with the separation of powers concerns that in subsequent decades led to greater deference to the political branches in treaty enforcement.107 Carrying forward the broad spirit of Missouri v. Holland discussed previously,108 the Supreme Court repeatedly emphasized the preemptive force of treaties over state law. 99 100 101 102 103 104 105 106

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Id. at 435. Id. See Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). 252 U.S. at 435. Sullivan v. Kidd, 254 U.S. 433, 442 (1921) (declaring that in interpreting and applying treaties courts “should be careful to see that international engagements are faithfully kept and observed”). See Chapter 10, pp. 321–31. U.S. Const. art. VI. Indeed, in doing so, it was not uncommon for the Court to quote Foster v. Neilson’s foundational pronouncement that a treaty “is to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.” See, e.g., De Lima v. Bidwell, 182 U.S. 1, 195 (1901) (quoting Foster v. Neilson, 27 U.S. 253, 314 (1829)); Terlinden v. Ames, 184 U.S. 270, 288 (1902) (same); United States v. Yen Tai, 185 U.S. 213, 220–21 (1902) (same); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936) (same). See Chapter 10, pp. 321–31. See supra pp. 199–202.


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To choose a prominent example, Asakura v. City of Seattle declared that, when a treaty “operates of itself,” it “stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States.”109 In consequence, the force of such treaties as federal law “cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws.”110 The Court likewise emphatically reaffirmed the corollary that courts are bound to apply such treaties as directly enforceable law. As it declared in the 1909 case of Maiorano v. Baltimore & Ohio Railroad Co.,111 a treaty “is the supreme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced by them.”112 Beyond these long-accepted principles, the most surprising discovery from a canvass of the numerous treaty cases in the first half of the twentieth century is the absence of any detailed examination of the direct effect of treaties in domestic law or, in Foster’s words, of the circumstances under which a treaty “operates of itself.” In modern times, this subject has become one of the more controversial issues in treaty law.113 But in the period 1901–45, the Supreme Court rarely paused to analyze whether a treaty was self-executing or indeed even to explore what that term meant. Instead, its common practice when confronted with a treaty claim was simply to observe that treaties may function as federal law and then to apply the treaty as such. To be sure, the Court in scattered opinions made targeted observations about the concept of self-execution. At the very beginning of the period, for example, the Court affirmed in Mitchell v. Furman that the 1819 treaty with Spain – which had provided the foundation for Foster v. Neilson and its progeny – “confirmed” individual property rights of its own force.114 The Court in Asakura v. City of Seattle similarly observed that a 1911 treaty of amity with Japan “operates of itself without the aid of any legislation, state or national.”115 On a more practical note, Cook v. United States in 1933 referred to statements made by the Secretary of State before Senate action on a treaty to support a conclusion that the treaty was self-executing.116 109 110

111 112

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265 U.S. 332, 341 (1924). Id.; see also Alverez v. United States, 216 U.S. 167, 175–76 (1910) (same); Nielson v. Johnson, 279 U.S. 47, 52 (1929) (“[T]he treaty-making power is independent of and superior to the legislative power of the states[.]”); Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 162 (1940) (declaring that treaty ratified by the United States “bound Puerto Rico and could not be overriden by the Puerto Rican legislature”); Hines v. Davidowitz, 312 U.S. 52, 67–68 (1941) (observing that where the national government has established rights by treaty or statute, “[n]o state can add to or detract from the[ir] force and effect” under the Supremacy Clause). 213 U.S. 268 (1909). Id. at 272–73; see also Terlinden v. Ames, 184 U.S. 270, 288 (1902) (concluding that courts must give effect to an extradition treaty “whenever it operates of itself without the aid of any legislative provision”); Alverez, 216 U.S. at 175–76 (same); Asakura, 265 U.S. at 341 (stating that when a treaty operates of itself, “it will be applied and given authoritative effect by the courts”). See Medellin v. Texas, 552 U.S. 491, 504–06 (2008). 180 U.S. 420, 434 (observing that, because the treaty provided that property rights “remain ratified and confirmed,” it “has been frequently construed as meaning that grants needing no confirmation should stand confirmed”). 265 U.S. at 341. See 288 U.S. 102, 119 (1933) (citing letter from Secretary of State to Congress and concluding that “in a strict sense the Treaty was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions”); see also Maul v. United States 274 U.S. 501, 530 n.39 (1927) (Brandeis, J., concurring) (citing same letter for the same purpose); Aguilar v. Standard Oil Co., 318 U.S. 724, 738 (1943) (Stone, C.J., concurring) (citing letter from Secretary of State to President quoted in a congressional report to show that a treaty provision was self-executing).

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Only two opinions provided any broader guidance on the concept of self-execution. The first is Fok Young Yo v. United States.117 That case involved the right of Chinese nationals to move through U.S. ports bound for third countries under two separate immigration treaties with China (in 1880 and 1894). As to the first treaty, the Court observed that the relevant provisions merely granted regulatory powers to the United States and “did not refer to the privilege of transit.”118 Therefore, the Court concluded that the treaty in this respect “was not self-executing” and thus required implementing legislation.119 The latter treaty, in contrast, “recogniz[ed] the privilege of transit and provid[ed] that it should continue [and] proceeded on the ground of its existence.” As a result, “no act of Congress was required.”120 The second opinion is Cameron Septic Tank Co. v. City of Knoxville.121 The Court found there that a provision in the 1900 Treaty of Brussels on the protection of industrial property rights was not self-executing.122 Noting that Congress had by statute implemented some provisions, but not all, of the treaty, the Court observed that it was “the sense of Congress and those concerned with the treaty that it required legislation to become effective.”123 The Court also reasoned that any doubt on this score was “entirely removed by the legislative action of other states,” which, according to a report to Congress at the time, had all adopted implementing legislation for the treaty or were expected to do so.124 These atypical cases aside, the Court commonly applied treaties either with a simple statement that they were self-executing or without any analysis of the issue at all. Bacardi Corp. of America v. Domenech125 is illustrative. There, the Court confronted a claim that discriminatory legislation adopted by Puerto Rico conflicted with the General InterAmerican Convention for Trade Mark and Commercial Protection.126 With no analysis at all, the Court simply declared, “This treaty on ratification became a part of our law. No special legislation in the United States was necessary to make it effective.”127 Missing from the opinions of the period is any noticeable concern – so prominent in the decades after World War II – about the propriety of deferring to the political branches on sensitive issues of treaty enforcement. To the contrary, the obligation of the courts to enforce treaties as the positive law of the United States applied as well against the federal government as to individuals and the States. 2. Judicial Enforcement of Private Treaty Rights Against Individuals, the States, and the Federal Government Alike: As earlier chapters have noted, courts in the United States had regularly enforced private rights secured by treaty from the earliest years of the Constitution.128 But even as the field of operation of treaties expanded significantly in 117 118 119 120 121 122 123 124 125 126 127 128

185 U.S. 296 (1902). Id. at 303. Id. Id. 227 U.S. 39 (1913). See id. at 49–50. Id. at 49. Id. at 49–50. 311 U.S. 150 (1940). General Inter-American Convention for Trade Mark and Commercial Protection, Feb. 20, 1929, 46 Stat. 2907, 124 L.N.T.S. 357. 311 U.S. at 161–62 (citing Head Money Cases, 112 U.S. 580, 598–99 (1884), and Asakura v. City of Seattle, 265 U.S. 332, 341 (1924)). See Chapter 1, pp. 14–16; Chapter 2, pp. 66–72.


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the late nineteenth and early twentieth centuries, the Court repeatedly emphasized the obligation of state and federal courts to enforce private rights protected by treaty. Indeed, it even endorsed a liberal interpretive presumption in favor of individual rights secured by treaties.129 With respect to judicial enforcement of treaties, the Supreme Court’s early-twentiethcentury opinions did not distinguish between private rights and public rights. They likewise gave no indication that separation of powers principles might compel or counsel a differentiated analysis of individual treaty rights based on the nature of the defendant. As might be expected, the cases are legion in which the Supreme Court enforced private treaty rights as preemptive federal law in disputes against individuals and the States. The types of treaties so enforced in summary fashion run the range from numerous examples of treaties of friendship, commerce, and navigation; to trademark and other intellectual property treaties; to property protections in peace and territorial treaties; to a variety of more specialized forms.130 But the Supreme Court applied treaties with equal vigor against the federal government. In sharp contrast with the era to follow,131 concerns about trenching on the prerogatives of the political branches found little expression in early-twentieth-century treaty cases.132 The federal government did retain the power to supersede treaties by subsequent formal legislation, as the next section examines in more detail. But absent such formal action, the Supreme Court showed little pause in enforcing individual treaty rights even against the executive branch. Perkins v. Elg is a good example.133 There, the Executive refused to give effect to citizenship rights secured by a treaty with Sweden. Rejecting the Executive’s interpretation, the Supreme Court enforced the treaty in favor of a claimant and even affirmed an injunction compelling the Departments of Labor and State to recognize the claimant’s citizenship.134 This case is no anomaly. In the period 129 130

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See infra Part II.C. See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 437 (1902) (applying 1832 Treaty of Amity, Commerce, and Navigation with Russia); La Republique Francaise v. Saratoga Vichy Spring Co., 191 U.S. 427 (1903) (analyzing Industrial Property Treaty of 1887); Ponce v. Roman Catholic Apostolic Church, 210 U.S. 296, 310–11 (1908) (upholding property rights of Roman Catholic Church against local confiscation under 1898 Treaty of Peace with Spain); Vilas v. City of Manila, 220 U.S. 345, 352–63 (1911) (applying the property rights protections in the 1898 Treaty of Peace with Spain); Patsone v. Pennsylvania, 232 U.S. 138, 145–46 (1914) (analyzing 1871 Treaty of Commerce and Navigation with Italy); Petersen v. Iowa ex rel. State Treasurer, 245 U.S. 170, 172–74 (1917) (applying 1826 Treaty of Friendship, Commerce, and Navigation with Denmark); Duus v. Brown, 245 U.S. 176, 177–78 (1917) (same for 1827 treaty with Sweden); Berg v. British & Afr. Steam Nav. Co., 243 U.S. 124, 152–53 (1917) (applying 1799 treaty with Prussia); Ford v. United States, 273 U.S. 593 (1927) (analyzing 1924 treaty with Great Britain on importation of alcoholic beverages); Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 161–62 (1940) (enforcing 1929 Inter-American Trademark Convention). See Chapter 10, pp. 321–31. Of course, the Court also applied treaties against individuals and in favor of the federal government. See, e.g., Terlinden v. Ames, 184 U.S. 270, 288 (1902) (enforcing extradition treaty in favor of the government); Bingham v. Bradley, 241 U.S. 511, 516–18 (1916) (applying two extradition treaties with Great Britain and concluding that “a fair observance of the obligations of the treaty requires that [the fugitive] be surrendered”); Cook v. United States, 288 U.S. 102, 119 (1933) (declaring that a special 1924 treaty with Great Britain that regulated the power to board foreign ships “in a strict sense was self-executing, in that no legislation was necessary to authorize executive action pursuant to its provisions”); Factor v. Laubenheimer, 290 U.S. 276, 288–304 (1933) (recognizing self-executing governmental power of extradition under treaty with Great Britain). 307 U.S. 325 (1939). Id. at 335–42.

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under review, the Court enforced against the federal government a variety of individual rights secured by treaty, on subjects including immigration (even in favor of Chinese nationals),135 real property,136 and extradition.137

D. Formalism in Force: Resolving Conflicts between Treaties and Statutes 1. Reaffirmation of the Later-in-Time Rule: Another prominent example of continuity is found in Supreme Court jurisprudence on conflicts between treaties and statutes. The Court during this period in fact had a surprisingly large number of occasions to address the subject. Chapter 1 notes some early countercurrents on this issue.138 But following a nascent trend from the late 1800s,139 the Supreme Court in the new century uniformly reaffirmed the principle that in the event of unavoidable conflict between a treaty and a statute, the later-in-time principle will prevail.140 At the same time, as the next section explains, the Court further refined a presumption against tacit statutory abrogation of treaties.141 It is not surprising that the principal, but by no means sole,142 source of friction on this score was the attempt by Congress to limit Chinese immigration. In well over a dozen cases in the period, the Court confronted treaty-based claims of Chinese nationals that conflicted with either an earlier or a later statute.143 And in each case, the Court 135

136 137

138 139 140 141 142

143

See Fong v. United States, 209 U.S. 453, 578–79 (1908) (rejecting attempt to deport students based on 1894 treaty with China); Cheung Sum Shee v. Nagle, 268 U.S. 336, 345–46 (1925) (enforcing 1880 immigration treaty with China against federal government notwithstanding subsequent exclusionary legislation). See United States v. Green, 185 U.S. 256, 264–70 (1902) (enforcing property rights protected by 1854 Gadsden treaty with Mexico). See Johnson v. Browne, 205 U.S. 309, 319–21 (1907) (rejecting executive branch interpretation of extradition treaty and precluding executive from imprisoning an individual contrary to rights protected in the treaty). See Chapter 1, pp. 18–20. See The Cherokee Tobacco v. United States, 78 U.S. 616, 621 (1870); see also Head Money Cases, 112 U.S. 580, 599 (1884); Whitney v. Robertson, 124 U.S. 190, 194 (1888). See, e.g., United States v. Yen Tai, 185 U.S. 213, 220 (1902); Hijo v. United States, 194 U.S. 315, 324 (1904). See infra Part I.D.2. See, e.g., Grin v. Shine, 187 U.S. 181, 191–92 (1902) (holding that Congress may add to or relax the requirements in an extradition treaty); Charlton v. Kelly, 229 U.S. 447, 463–64 (1913) (same); Cook v. United States, 288 U.S. 102, 118–19 (1933) (holding that 1924 treaty with Great Britain that limited the power to board ships “superseded” contrary authority granted by statute, “so far as inconsistent with the terms of the act”); cf. Yamataya v. Fischer, 189 U.S. 86 (1903) (holding that treaty with Japan that conferred residency rights subject to laws on “police and public security” did not conflict with law that barred entrance to “paupers or persons likely to become a public charge”). See United States v. Yen Tai, 185 U.S. 213 (1902) (holding that treaty with China that broadly addressed residency rights did not supersede procedural provisions of earlier immigration statute); Fok Young Yo v. United States, 185 U.S. 296, 304 (1902) (addressing the power of Congress to delegate to executive branch certain decisions under treaty with China); Lee Lung v. Patterson, 186 U.S. 168 (1902) (holding that later treaty did not displace certain provisions of a statute); Lee Gon Yung v. United States, 185 U.S. 306 (1902) (same); Ah How v. United States, 193 U.S. 65, 75–77 (1904) (holding that subsequent legislation that continued laws in force “so far as the same are not inconsistent with treaty obligations” did not remove earlier certificate requirements expressly mentioned in 1894 treaty with China); Hong v. United States, 193 U.S. 517, 519–20 (1904) (same); Fong v. United States, 209 U.S. 453 (1908) (upholding rights of students under 1894 treaty of emigration with China); Chin Fong v. Backus, 241 U.S. 1, 5 (1916) (analyzing claim under 1880 immigration treaty with China); Yee Won v. White, 256


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adverted – in the spirit of formalism and positivism that marked the age – to the principle that, in the event of a conflict, the courts must give precedence to the later expression of sovereign will adopted through the prescribed lawmaking processes. The 1902 case of United States v. Yen Tai is illustrative. There, the Court reaffirmed the principle that “a treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.”144 Indeed, the Court in Yen Tai provided perhaps the definitive rationale for the precedence of the later treaty founded on the Supremacy Clause: That it was competent for the two countries by treaty to have superseded a prior act of Congress on the same subject is not to be doubted; for otherwise the declaration in the Constitution that a treaty, concluded in the mode prescribed by that instrument, shall be the supreme law of the land, would not have due effect. As Congress may by statute abrogate, so far at least as this country is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same subject.145

The opinions of the period also displayed a careful understanding of the dualist consequence of this rule. Treaties are first and fundamentally creatures of international law. Their express inclusion in the Supremacy Clause nonetheless means that treaties may function, in monist fashion, as directly applicable domestic law.146 Moreover, in light of the international law obligation, as the Supreme Court observed at the time, “[g]ood faith toward the other contracting nation might require Congress to refrain from making any change” to the domestic law so founded by treaty.147 But the Court also recognized that the later-in-time rule may result in a separation of the international from the domestic incidents of a treaty. Thus, as it explained in Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., even where a later statute “control[s] in our courts as the later expression of our municipal law” notwithstanding a contrary treaty, “the international obligation remain[s] unaffected.”148 The Court also made clear that it is powerless to intervene. The 1901 opinion in Barker v. Harvey affirmed that the Court “has no power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation which the government of the United States, as a sovereign power, chooses to disregard.”149 In this respect, the Court remained true to the separation of powers principles discussed in Part I.A. that courts

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U.S. 399 (1921) (holding that subsequent exclusionary legislation removed any right secured by special 1884 treaty for laborer to bring his wife and family into the country); Cheung Sum Shee v. Nagle, 268 U.S. 336, 345–46 (1925) (holding that 1880 commerce and navigation treaty with China “by necessary implication extended to the[] wives and minor children” of lawful merchants and rejecting claim that 1924 immigration act impliedly removed that right); Nagle v. Loi Ha, 275 U.S. 475, 477–79 (1928) (addressing effect of exclusionary legislation reenacted after a practical construction of treaty). 185 U.S. at 220. Id.; see also Ribas y Hijo v. United States, 194 U.S. 315, 324 (1904) (observing that in the event “of a conflict between an act of Congress and a treaty, – each being equally the supreme law of the land, – the one last in date must prevail in the courts”); Alverez v. United States, 216 U.S. 167, 175–76 (1910) (same); Charlton v. Kelly, 229 U.S. 447, 463–64 (1913) (same); Rainey v. United States, 232 U.S. 310, 316 (1914) (observing that “the Constitution does not declare that the law so established shall never be altered or repealed by Congress”); Cook v. United States, 288 U.S. 102, 119–20 (1933) (same). See supra Part I.C.1. Rainey, 232 U.S. at 316 (quoting the lower court). 291 U.S. 138, 160 (1934) (citing, inter alia, Cook v. United States, 288 U.S. 102, 120 (1933)). 181 U.S. 481, 488 (1901).

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are bound to apply treaties unless and until they are validly terminated by the political branches.150 2. Recognition of the Special Status of Treaties Through Interpretive Presumptions: The later-in-time principle has no formal favorites as between treaties and statutes.151 In the event of an unavoidable conflict, whichever is chronologically later takes priority. But treaties and statutes are of fundamentally different natures: where a later statute supersedes a treaty, the consequence is a violation of the obligations of the United States to a foreign state under international law. In such a situation, a court has the special responsibility to ensure that our nation’s “international engagements are faithfully kept and observed.”152 Sensitive to this responsibility, the Supreme Court in the early twentieth century repeatedly applied a presumption that Congress does not intend to violate treaty obligations unless such a purpose is unambiguously reflected in a statute. The Court thus observed in Pigeon River that “the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.”153 Consistent with the continuity that marked the era, this approach carried forward the broader principle of Schooner Charming Betsy154 one hundred years earlier as well as its more specific formulation for treaties in the 1884 case of Chew Heong v. United States.155 The Supreme Court also made clear that the presumption in favor of treaties applies with special force for statutes whose very purpose is to implement treaty obligations.156 The Court also more broadly observed early in the twentieth century that “[r]epeals by implication are never favored.”157 It thus suggested that the general presumption should apply as well in the case of a treaty that may conflict with an earlier statute.158 But the Court’s most thorough examination of the issue during the 1901–45 era came in the 1933 case of Cook v. United States.159 There, it confronted an interesting sequence in which a 1922 statute authorized the boarding of foreign ships within a certain distance 150 151 152 153

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See supra pp. 195–96. But see Karnuth v. United States, 279 U.S. 231, 239–41 (1929) (discussed supra p. 196). See supra p. 207. Sullivan v. Kidd, 254 U.S. 433, 442 (1921) (declaring that in interpreting and applying treaties courts “should be careful to see that international engagements are faithfully kept and observed”). 291 U.S. 138, 160 (1934); see also United States v. Payne, 264 U.S. 446, 449 (1924) (observing that construction of a later statute that would effect “a materially restrictive change” in a treaty “is to be avoided, if possible”); Cheung Sum Shee v. Nagle, 268 U.S. 336, 345–46 (1925) (holding that statute enacted subsequent to 1880 commerce and navigation treaty with China “must be construed with the view to preserve treaty rights unless clearly annulled”); Karnuth v. United States, 279 U.S. 231 (1929) (observing that abrogation of treaty by a later statute is “a result, of course, to be avoided if reasonably it [can] be done”); Cook v. United States, 288 U.S. 102, 120 (1933) (same). Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804); see also Chapter 1, p. 36. 112 U.S. 536, 549 (1884); see also Chapter 2, p. 69. See United States v. O’Donnell, 303 U.S. 501, 512 (1938) (holding that where a statute implements treaty obligations, the statute should not be interpreted to defeat those obligations). Johnson v. Browne, 205 U.S. 309, 321 (1907). Id. at 321 (“[A] later treaty will not be regarded as repealing an earlier statute by implication . . . unless the two are absolutely incompatible and the statute cannot be enforced without antagonizing the treaty.”); see also United States v. Yen Tai, 185 U.S. 213, 222 (1902) (“[T]he purpose by treaty to supersede the whole or a part of an act of Congress, must not be lightly assumed, but must appear clearly and distinctly from the words used . . . in the treaty.”). 288 U.S. 102 (1933).


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of the shore, a 1924 treaty sought to limit that authority, and Congress reenacted the statute.160 After a detailed analysis of the treaty’s drafting history,161 the Court concluded that the limitations in the treaty “superseded, so far as inconsistent with the terms of the act,” the boarding authority granted by the 1922 statute.162 In doing so, it nowhere referred to any interpretive presumption against repeal of the statute. But when it turned to the effect of the later reenactment of the statute, the Court reaffirmed the fundamental presumption that “[a] treaty will not be deemed to have been abrogated or modified by a later statute, unless such purpose on the part of Congress has been clearly expressed.”163 The implication was that, although the later-in-time rule has no formal favorites, the Charming Betsy presumption leaned toward treaties.

II. Treaty Interpretation: A Heightened Sensitivity for the Judicial Role in Enforcing International Obligations in Domestic Law The Supreme Court in the first half of the twentieth century made significant, enduring contributions to the law of treaty interpretation. Indeed, during that period the Court established or solidified the foundational principles of interpretation that it has applied to this day. As we see in the next section, it also broadly endorsed both a purposive approach to treaty interpretation and a doctrine of liberal construction of treaty-based rights. These liberal principles, however, have almost entirely disappeared from modern Supreme Court jurisprudence.

A. The Core Principles of Treaty Interpretation Building on the notion that treaties are contracts,164 the Supreme Court established in the first half of the twentieth century that the fundamental model for treaty interpretation is to be found in the law of contracts.165 But, significantly, it also emphasized that international law provides the essential interpretive context. “As treaties are contracts between independent nations,” it affirmed in Santovincenzo v. Egan, “their words are to be taken in their ordinary meaning ‘as understood in the public law of nations.’”166 Consistent with the contract model, the opinions of the era applied a variety of familiar interpretive principles from that field. The Supreme Court affirmed, for example, that 160 161 162 163

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Id. at 109–10. Id. at 112–18. Id. at 118–19. Id. at 119–20; see also Pigeon River Imp., Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160–61 (1934) (observing that a subsequent act of Congress reflected the “practical construction” of a treaty demonstrating that Congress did not intend to violate the treaty). See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law.”); United States v. Rauscher, 119 U.S. 407, 418 (1886) (same). See Sullivan v. Kidd, 254 U.S. 433, 439 (1921) (“Writers of authority agree that treaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals.”); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (observing with regard to interpretation that “treaties are contracts between independent nations”). 284 U.S. at 40 (quoting Geofroy v. Riggs, 133 U.S. 258, 271 (1890)).

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the touchstone of treaty interpretation is the intention of the parties, as evidenced in the first instance by the text.167 But courts must also give effect to all of a treaty’s parts “with a view to giving a fair operation to the whole.”168 As one might expect, the recurrent tension between text and context also played out in the early years of the twentieth century. As the following sections explain in more detail, a liberal and purposive view broadly prevailed over strict textualist theories of interpretation. But there were scattered exceptions. In a 1936 opinion, for example, the Supreme Court declared that “it is our duty to interpret [a treaty] according to its terms. These are to be fairly construed, but we cannot add to or detract from them.”169 This enduring controversy aside, three of the established pillars of modern treaty interpretation trace their foundations to Supreme Court opinions in the early decades of the twentieth century. The first – which is contrary to standard domestic contract practice in this country – is that courts may look to the negotiation and drafting history in interpreting a treaty.170 Supreme Court endorsements of this principle between 1901 and 1945 abound.171 To pick just one example, the Court declared in Factor v. Laubenheimer that “in ascertaining the meaning of a treaty we may look beyond its written words to the negotiations and diplomatic correspondence of the contracting parties relating to the subject-matter.”172 The Supreme Court in the 1901–45 period also firmly entrenched the role of “practical construction” in treaty interpretation. Under this principle, courts may look to the subsequent action of the treaty parties173 and subsequent formal administrative practice as evidence of the meaning of a treaty. Again, examples of this interpretive practice in the first half of the twentieth century abound.174 Finally, the Court cemented the practice of consulting other treaties of the same class or type for comparison or contrast. Thus, in Perkins v. Elg the Court observed that its 167 168

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See, e.g., Wright v. Henkel, 190 U.S. 40, 57 (1903) (“Treaties must receive a fair interpretation, according to the intention of the contracting parties, and so as to carry out their manifest purpose.”). Sullivan, 254 U.S. at 439. The Court also applied other traditional and more specialized principles of interpretation. See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 436 (1902) (applying the traditional maxim of expressio unius est exclusio alterius – that “the enumeration of certain powers with respect to a particular subject matter is a negation of all other analogous powers with respect to the same subject matter”); Factor v. Laubenheimer, 290 U.S. 276, 292–93 (1933) (reasoning that inclusion of a restriction in a supplementary treaty implied the drafters understood that no such restriction existed in the original). Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936). Legitimate sources of drafting history for a treaty do not include, however, oral statements that “were not embodied in any writing and were not communicated to the government of the negotiator or to its ratifying body.” Arizona v. California, 292 U.S. 341, 359–60 (1934). See, e.g., Cameron Septic Tank Co. v. City of Knoxville, 227 U.S. 39, 45–49 (1913); Webb v. O’Brien, 263 U.S. 313, 323–24 (1923); Nielson v. Johnson, 279 U.S. 47, 52–57 (1929); Cook v. United States, 288 U.S. 102, 112 (1933); Arizona v. California, 292 U.S. 341, 359–60 (1934); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 17 (1936); Choctaw Nations v. United States, 318 U.S. 423, 431–32 (1943). 290 U.S. 276, 294–95 (1933). This includes a failure of a treaty partner to object to an action potentially in violation of the treaty. See Pigeon River Imp., Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 161–63 (1934). See, e.g., Sullivan v. Kidd, 254 U.S. 433, 442 (1921) (endorsing resort to consistent practices by executive agencies charged with the administration of a treaty); Nielson v. Johnson, 279 U.S. 47, 52 (1929) (same); Luckenbach S.S. Co. v. United States, 280 U.S. 173, 177–83 (1930) (same); Factor v. Laubenheimer, 290 U.S. 276, 294–95 (1933) (same); Cook v. United States, 288 U.S. 102, 119 (1933) (same); Pigeon River Imp., Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 158 (1934) (same); Perkins v. Elg, 307 U.S. 325, 339–42 (1939) (same).


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general reading of a treaty “find[s] support in the construction placed” on similar treaties from the period.175 This was again a common method of interpretation for the Court in the first half of the twentieth century.176

B. The Endorsement of a Purposive Approach to Interpretation Among the most significant developments in treaty jurisprudence in the period 1901–45 was the Supreme Court’s embrace of a purposive approach to interpretation founded on principles of good faith, equality, and reciprocity. The opinions of the era are replete with solemn declarations about the responsibility of courts to enforce treaty obligations “with the most scrupulous good faith”177 and the consequent duty of courts to interpret treaties liberally to avoid international friction.178 The seeds of this judicial instinct are of venerable lineage,179 and some early growths of firmer thought can be seen toward the end of the nineteenth century.180 But by the middle of the twentieth century a broad theory of liberal treaty interpretation had developed into established doctrine. The foundational opinion was Tucker v. Alexandroff in 1902.181 At issue in that case was a matter within the scope of, but not resolved by, the 1832 Treaty of Friendship, Commerce, and Navigation with Russia. The Supreme Court took the occasion to provide a sweeping exposition on the need for a “broad and liberal” approach to interpretation to promote friendly relations with our treaty partners. Because the treaty there was intended for the mutual protection of the parties, the Court opined: [It] should be interpreted in a spirit of uberrima fides, and in a manner to carry out its manifest purpose. As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is, not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence.182 175 1 176

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307 U.S. 325, 339 (1939). See, e.g., Rocca v. Thompson, 223 U.S. 317, 332–33 (1912) (contrasting language of another treaty of the same class and noting that if the drafters had intended the same result for the treaty at issue, “it would have been very easy to have declared that purpose in unmistakable terms”); Charlton v. Kelly, 229 U.S. 447, 466–68 (1913) (contrasting other treaties on same subject); Petersen v. Iowa ex rel. State Treasurer, 245 U.S. 170, 174 (1917) (same); Santovincenzo v. Egan, 284 U.S. 30, 36–37 (1931) (same); Factor v. Laubenheimer, 290 U.S. 276, 292 n.4 (1933) (same). Tucker v. Alexandroff, 183 U.S. 424, 437 (1902) (quoting 1 James Kent, Commentaries on American Law 174 (1836)). See, e.g., Sullivan v. Kidd, 254 U.S. 433, 442 (1921) (emphasizing that “the question of the construction of treaties is judicial in its nature, and courts when called upon to act should be careful to see that international engagements are faithfully kept and observed”). See The Amiable Isabella 19 U.S. 1, 89 (1821) (Johnson, J., dissenting) (urging liberal approach to treaty interpretation); Shanks v. Dupont 28 U.S. 242 (1830) (supporting liberal construction of 1794 Treaty of Amity, Commerce, and Navigation with Great Britain). See Geofroy v. Riggs 133 U.S. 258, 271 (1890) (observing that treaties “shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them”). 183 U.S. 424 (1902). Id. at 437.

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Embedded in these sentiments are three distinct, but closely related notions that coalesced into accepted principles in the period. The first is that purpose plays a central role in treaty interpretation. Throughout the first half of the twentieth century, the Supreme Court emphasized that treaties “are to be read in the light of the conditions and circumstances existing at the time they were entered into, with a view to effecting the objects and purposes” of the contracting parties.183 Perhaps not surprisingly, this approach is fully consistent with modern international law on the subject.184 The second principle is a presumption of reciprocity and equality of obligation between the treaty parties. Although only a small number of opinions emphasized the theoretical point,185 this background norm can have practical consequences. The Supreme Court’s 1921 opinion in Sullivan v. Kidd186 provides an illustration. At issue there was the status of Canadian residents under an 1899 treaty with Great Britain that established reciprocal property rights for citizens. The treaty required formal notice before it would extend to territories and similar possessions, but Great Britain argued that this provision extended only to U.S. territories. The Supreme Court rejected such an argument as “inconsistent with the general purpose and object of such conventions to secure equality in exchange of privileges and reciprocity in rights granted and secured.”187 The final liberal principle of interpretation that flowered in the period is the most significant. As reflected in the previous quotation from Tucker v. Alexandroff, the Supreme Court’s opinions in the first half of the twentieth century were marked by a distinct sensitivity to the judicial role in the interpretation of the international obligations of the United States. Consistent with the principle of good faith, the Court declared in a line of cases throughout the period that treaties should be construed in a “broad and liberal spirit.”188 As the Court explained in Jordan v. Tashiro, “[t]he principles which should 183

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Rocca v. Thompson, 223 U.S. 317, 331–32 (1912); see also United States v. Yen Tai, 185 U.S. 213, 220 (1902) (“the court ought to hesitate to adopt any construction of the treaty that would tend to defeat the object each [treaty party] had in view”); Wright v. Henkel, 190 U.S. 40, 57 (1903) (rejecting interpretation of an extradition treaty because it would “largely defeat the object” of such treaties); Sullivan v. Kidd, 254 U.S. 433, 439 (1921) (observing that treaties “are to be executed in the utmost good faith, with a view to making effective the purposes of the high contracting parties”); Santovincenzo v. Egan, 284 U.S. 30, 37 (1931) (observing that “regard should be had to the purpose of [a t]reaty” on issues of interpretation); Factor v. Laubenheimer, 290 U.S. 276, 293–94 (1933) (same); Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 162 (1940) (observing that a court “should construe [a] treaty liberally to give effect to the purpose which animates it”). See Vienna Convention on the Law of Treaties art. 31(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331. (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”). See, e.g., Factor v. Laubenheimer, 290 U.S. 276, 293 (1933) (observing that principles of good faith require that treaty obligations “should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them”); Jordan v. Tashiro, 278 U.S. 123, 127 (1928) (same). 254 U.S. 433 (1921). Id. at 440; see also Factor v. Laubenheimer, 290 U.S. 276, 300–01 (1933) (rejecting an argument that charged offense under an extradition treaty must be a crime in the State of the United States to which the fugitive has fled because such an interpretation “would restrict the reciprocal operation of the treaty”). See Tucker v. Alexandroff, 183 U.S. 424, 437 (1902); see also Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 581 (1908) (citing “the rule that treaties should be liberally interpreted with a view to protecting the citizens of the respective countries in rights thereby secured”); Asakura v. City of Seattle, 265 U.S. 332, 342 (1924) (applying 1911 Treaty of Commerce and Navigation with Japan in light of the same principle); Nielson v. Johnson, 279 U.S. 47, 51 (1929) (same); Todok v. Union State Bank of Harvard,


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control the diplomatic relations of nations, and the good faith of treaties as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties[.]”189 The practical consequence of this liberal interpretation principle was a profoundly flexible approach that was open to the broader purposes of a treaty and was not mindlessly bound to its text. Tucker v. Alexandroff itself provides an illustration. A provision in the treaty with Russia required the arrest and delivery of deserting seamen; the problem was that the Russian seaman in question had come to the United States to serve on a ship, but Russia had not yet officially accepted delivery of the ship from the shipyard.190 In application of the liberal interpretation canon, the Court nonetheless found that, although its strict language did not address such a situation, the purpose of the treaty provision to advance cooperation on deserting seamen extended as well to the seaman in that case.191 By 1940, the principle of liberal treaty interpretation was so firmly established that the Supreme Court described it as “accepted canon.”192 Indeed, this principle flowered in the context of individual rights before fading from the Supreme Court’s jurisprudence, as the next section addresses in more detail.193

C. The Liberal Interpretation Canon and Individual Rights The liberal approach to treaty interpretation – founded on separation of powers understandings of the judicial role in faithfully enforcing treaties – comes through most clearly on the subject of individual rights. During this period the Court repeatedly emphasized the special significance of treaties designed to protect foreign citizens in the United States. Hines v. Davidowitz in 1941 described such commitments to foreign states as “[o]ne of the most important and delicate of all international relationships.”194 In furtherance of these sentiments, the Supreme Court refined the general liberal interpretation canon into a more specific, formal presumption in favor of recognizing individual rights secured by treaties. Again, scattered seeds may be found in some earlier cases.195 But the substantive preference for enlarging individual treaty rights, founded on “[c]onsiderations which should govern the diplomatic relations between nations, and

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Neb., 281 U.S. 449, 454 (1930) (same); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (referring to “the familiar rule with respect to the liberal construction of treaties”); Factor v. Laubenheimer, 290 U.S. 276, 293 (1933) (“In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations, and the good faith of treaties, as well, require that their obligations should be liberally construed[.]”); Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936) (“It is a familiar rule that the obligations of treaties should be liberally construed so as to give effect to the apparent intentions of the parties.”); Choctaw Nations v. United States, 318 U.S. 423, 431–32 (1943) (“[T]reaties are construed more liberally than private agreements[.]”). 278 U.S. 123, 127 (1928). 183 U.S. at 436–39. Id. at 437–49. Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 163 (1940). See infra Part II.C. 312 U.S. 52, 63–64 (1941). See Hauenstein v. Lynham, 100 U.S. 483, 487 (1880) (holding that “[w]here a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred.”); Kinkead v. United States, 150 U.S. 483 (1893) (Shiras, J., dissenting) (same).

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the good faith of treaties,”196 flowered into established doctrine in the first half of the twentieth century. The twin cases of Asakura v. City of Seattle197 and Jordan v. Tashiro198 represent the distillation of this more specific doctrine. At issue in both cases were local laws that sought to bar noncitizens from specific business activities: in Asakura, the pawn broker business;199 in Tashiro, the operation of a hospital.200 Japanese citizens challenged the local laws relying on a right to “carry on trade” secured by the 1911 Treaty of Commerce and Navigation with Japan. In both cases, the Court resolved the interpretive issue with an explicit declaration that, in cases of doubt, courts should favor the more expansive reading of treaty-based rights: “Treaties are to be construed in a broad and liberal spirit,” the Court proclaimed in Asakura, “and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.”201 In direct application of this preference, the Court found in both cases that the treaty preempted the discriminatory local legislation.202 From that point forward until the very end of the period, the Supreme Court repeatedly reaffirmed – in essentially identical language – that courts should prefer an expansive reading of treaty-based rights. It applied the preference to invalidate a discriminatory state inheritance tax in Nielson v. Johnson,203 to read the term “goods and effects” to cover real estate in Todok v. Union State Bank of Harvard, Nebraska,204 and to set aside a local law hostile to foreign trademarks in Bacardi Corp. of America v. Domenech.205 The Court described both the general liberal interpretation canon and the specific preference for an expansive view on individual treaty rights as principles “consistently recognized and applied by this Court.”206 This does not mean, of course, that private rights claimed under a treaty always prevailed, even at the height of the doctrine’s flowering. But – unlike the preceding period207 – the decisions rejecting treaty-based claims do not reveal discernible themes, whether as a matter of substance or procedure, and the Court itself offered no hint of any unifying principle.208 The cases instead appear very much driven by their specific facts and range over such prosaic matters as the right to own agricultural land, hunt wild 196 197 198 199 200 201 202

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Factor v. Laubenheimer, 290 U.S. 276, 293–94 (1933). 265 U.S. 332 (1924). 278 U.S. 123 (1928). 265 U.S. at 339. 278 U.S. at 124. 265 U.S. at 342; see also Tashiro, 278 U.S. at 127 (employing essentially the same language). Asakura, 265 U.S. at 343–44 (applying the liberal interpretation canon and concluding that “it must be held that [the pawn broker] business is ‘trade’ within the meaning of the treaty”); Tashiro, 278 U.S. at 128–29 (“Giving to the terms of the treaty, as we are required by accepted principles, a liberal rather than a narrow interpretation, we think . . . that the terms ‘trade’ and ‘commerce’ . . . are sufficient to include the operation of a hospital.”). 279 U.S. 47, 57–58 (1929). 281 U.S. 449, 453–54 (1930). The Court there nonetheless found that the specific state statute at issue did not discriminate in a manner repugnant to the purpose of the treaty. See id. at 454–56. 311 U.S. 150, 162 (1940); see also Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 581 (1908) (affirming “the rule that treaties should be liberally interpreted with a view to protecting the citizens of the respective countries in rights thereby secured”). Factor v. Laubenheimer, 290 U.S. 276, 293 (1933). See Chapter 2, pp. 69–72. It is nonetheless interesting to note that four of the more prominent opinions in this group were authored by Justice Butler. See Webb v. O’Brien, 263 U.S. 313, 323–24 (1923); Frick v. Webb, 263 U.S. 326, 333–34 (1923); Terrace v. Thompson, 263 U.S. 197, 222–24 (1923); Cockrill v. California, 268 U.S. 258, 262–63 (1925).


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game, and operate a pool hall, and succeed to the interests of decedents.209 In all of these cases the Court failed even to mention the “consistently recognized and applied” principle of liberal interpretation of treaty rights. The only common theme among the cases that rejected treaty-based claims related to procedural defaults by the claimants. The issue arose primarily – although not exclusively210 – in the context of individual property rights guaranteed by the 1848 Treaty of Guadalupe Hidalgo that ended the Mexican-American War. After ratification, Congress by statute established a land commission to resolve property claims in the ceded territory. Property owners who failed to assert their claims before the commission in a timely manner then challenged the procedural requirements as inconsistent with their treaty rights. In Barker v. Harvey,211 the Supreme Court recognized that the treaty protected individual property rights. It nonetheless declared – consistent with earlier cases of the same type212 – that the methods and procedures for determining those rights remained a matter of domestic law.213 Unfortunately, both the general and specific elements of the purposive, liberal approach to treaty interpretation have largely disappeared from modern Supreme Court jurisprudence. As I have explained elsewhere, the Court has referred to the substantive liberal interpretation canon in only one opinion (now twenty years ago) over the last sixty years.214 All that remains is a rhetorical shell that speaks of “liberal” interpretation, but in substance means only that – as we have seen previously215 – courts may resort to a broader field of interpretive evidence for treaties than may be the case for purely domestic statutes. As a practical matter, the “accepted canon” of liberal treaty interpretation both flowered and died in the first half of the twentieth century.

D. Confusion over the Role of Federalism in Treaty Interpretation As noted at the very beginning of this chapter, the Supreme Court in the period 1901–45 steadfastly adhered to the foundational principle that, in the event of conflict, treaties 209

210

211 212 213

214 215

See Maiorano v. Baltimore & Ohio R.R. Co., 213 U.S. 268, 274–75 (1909) (holding that treaty guaranteeing Italian citizens equal “rights and privileges” did not preempt a state law that discriminated against foreigners in survivor claims); Patsone v. Pennsylvania, 232 U.S. 138, 145–46 (1914) (holding that right of equality in treaty with Italy did not extend to hunting wild game); Heim v. McCall, 239 U.S. 175, 193–94 (1915) (same for claimed right to work on government projects); Webb v. O’Brien, 263 U.S. 313, 323–24 (1923) (holding that reciprocal right to own or lease land for residential and commercial purposes in 1911 treaty with Japan did not extend to agricultural purposes); Frick v. Webb, 263 U.S. 326, 333–34 (1923) (same); Terrace v. Thompson, 263 U.S. 197, 222–24 (1923) (same); Cockrill v. California, 268 U.S. 258, 262–63 (1925) (holding that treaty guarantee of “the same rights and privileges” did not preempt state evidentiary presumption that operated only against aliens); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 395–96 (1927) (holding that municipal ordinance prohibiting aliens from operating a pool room did not run afoul of treaty that guaranteed “reciprocal liberty of commerce”). See Mitchell v. Furman, 180 U.S. 402, 438–39 (1901) (holding that the failure of a property owner to follow a claims procedure set by statute resulted in the loss of property rights otherwise guaranteed by an 1819 treaty with Spain). 181 U.S. 481 (1901). See Chapter 2, pp. 71–72; see also De la Croix v. Chamberlain, 25 U.S. 599, 601, 602 (1827); Chouteau v. Eckhart, 43 U.S. 344, 374 (1824) (cited in Barker, 181 U.S. at 487). 181 U.S. at 486–87 (holding that treaty obligation was “entirely consistent with the right of this government to provide reasonable means for determining the validity of all titles within the ceded territory”); see also Mitchell v. Furman, 180 U.S. 402, 434–35 (1901) (same). See Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J. 1885, 1915–17 (2005) (citing United States v. Stuart, 489 U.S. 353, 368 (1989)). See supra pp. 210–11.

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will preempt inconsistent state law.216 The significant role of States in our federal system nonetheless has spawned enduring interpretive controversies over whether particular exercises of federal power have displaced state law, as well as over appropriate background assumptions to answer such questions.217 This friction between national and state law has also played out in the interpretation of treaties. The best that can be said of the period 1901–45 is that inconsistent Supreme Court declarations left the issue unclear. Indeed, confusion seemed to exist even within the person of Justice (later Chief Justice) Harlan Fiske Stone. Applying the liberal interpretation canon218 in 1929, Justice Stone observed that treaties are not subject to the general presumption against preemption of state law: “[A]s the treaty-making power is independent of and superior to the legislative power of the states, the meaning of treaty provisions so construed is not restricted by any necessity of avoiding possible conflict with state legislation.”219 Paradoxically, Justice Stone himself endorsed a contrary proposition less than ten years later. Interpreting an executive agreement in Guaranty Trust Co. of New York v. United States, he observed that “[e]ven the language of a treaty wherever reasonably possible will be construed so as not to override state laws or to impair rights arising under them.”220 But only three years later, a majority of the Court returned to a preference for a broad scope of preemption in the field of foreign affairs. In Hines v. Davidowitz,221 the Court declared in construing a federal statute founded on treaty obligations that “it is of importance that this legislation is in a field which affects international relations, the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority.”222 The Court thus concluded that “[a]ny concurrent state power that may exist is restricted to the narrowest of limits.”223 This declaration met with a strong dissent by none other than Chief Justice Stone.224 The 1942 case of United States v. Pink225 further confused the picture by endorsing (in dicta) a presumption against preemption even in relation to treaties.226

216 217

218 219 220

221 222 223 224

225 226

See supra pp. 202–3. See, e.g., Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 (1947) (observing that courts should “start with the assumption” that national law does not preempt state law in a field of traditional state authority “unless that was the clear and manifest purpose of Congress”); Medtronic, Inc. v. Lohr, 518 U.S. 470, 484–86 (1996) (addressing this “presumption against preemption”). See supra Parts II.B-C. Nielson v. Johnson, 279 U.S. 47, 52 (1929) (Stone, J.). 304 U.S. 126, 143 (1938) (Stone, J.); see also United States v. Pink, 315 U.S. 203, 255–56 (1942) (Stone, C.J., dissenting) (“Treaties, to say nothing of executive agreements and assignments which are mere transfers of rights, have hitherto been construed not to override state law or policy unless it is reasonably evident from their language that such was the intention.”). 312 U.S. 52 (1941). Id. at 67–68. Id. Id. at 80 (Stone, J., dissenting) (arguing that, under a “long established principle of constitutional interpretation,” state police powers are superseded “only where the repugnance or conflict is so ‘direct and positive’ that the two acts cannot ‘be fairly reconciled or consistently stand together’”). 315 U.S. 203 (1942). Id. at 230 (observing that “[i]t is of course true that . . . treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy”).


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E. Deference to the Executive: The Early (and Limited) Foundations Although little noted, the foundations for modern Supreme Court doctrine on deference to the executive branch in treaty interpretation are located in the first half of the twentieth century. Some references to executive treaty construction may be found in Court opinions from the late 1800s.227 But the modern principle that the interpretation of a treaty by the executive branch “is entitled to great weight”228 ultimately is founded only on a single opinion from 1933, Factor v. Laubenheimer.229 Careful analysis reveals, however, that the modern version of the deference principle has strayed far from its supposed foundations. First, Factor v. Laubenheimer declared that “in resolving doubts” the interpretive opinions of the executive branch merely are “of weight,” not “great” weight.230 Moreover, unlike the silence in the most recent cases, all of the cases in the chain of authority of Factor emphasized that the interpretation of treaties remains fundamentally a judicial enterprise. In the words of the progenitor of the line, executive views on the interpretation of a treaty are “not conclusive on the courts called upon to construe it,” even when the treaty’s meaning is in doubt.231 Modern Supreme Court doctrine strays from its foundations most significantly, however, in the very notion of “deference” to the executive branch. Decisions from the first half of the twentieth century did not accord deference to the mere legal opinion of the Executive on the proper interpretation of a treaty.232 Rather, the relevant interpretive evidence was the actual, practical “construction” of the treaty through the past actions of the executive branch. Factor and the two cases on which it relies233 – as well as other opinions from the era – looked merely to the “diplomatic history” that gave context to the drafting of a treaty and to the subsequent formal actions of the executive branch in performing its obligations.234 In this respect, reliance on executive branch “construction” is little more than a more specific application of the established principles (previously discussed 235 ) that courts may resort to prior negotiating history and subsequent “practical construction” in interpreting a treaty. Indeed, in a number of cases from the first half 227

228 229

230 231 232

233 234

235

See Chapter 2, pp. 84–85; see also Robert M. Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 Iowa L. Rev. 1723, 1741–42 (2007) (citing In re Ross, 140 U.S. 453 (1891)). Medellin v. Texas, 552 U.S. 491, 513 (2008) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982)). 290 U.S. 276, 295 (1933). The line of authority is both direct and exclusive: the sole authority cited by Medellin is Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184–185 (1982); Sumitomo in turn cites only Kolovrat v. Oregon, 366 U.S. 187, 194 (1961); and the sole authority cited by Kolovrat is Factor. 290 U.S. at 295. Factor, 290 U.S. at 295; see also Sullivan v. Kidd, 254 U.S. 433, 442 (1921) (observing that “the question of the construction of treaties is judicial in its nature”). The Court also made clear that Congress does not have the authority to control the interpretation of a treaty in the absence of formal legislation. See Fourteen Diamond Rings v. United States, 183 U.S. 176, 180 (1901) (holding that a subsequent resolution by the Senate on the meaning of a treaty was “absolutely without legal significance on the question before us,” for “[t]he meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it”). Factor cited only two cases on this point: Nielson v. Johnson, 279 U.S. 47, 52 (1929), and Charlton v. Kelly, 229 U.S. 447, 468 (1913). See Factor, 290 U.S. at 295 (examining executive “construction” of a treaty in the form of “diplomatic history” that attended its drafting); Nielson v. Johnson, 279 U.S. 47, 52 (1929) (same); Charlton v. Kelly, 229 U.S. 447, 468 (1913) (same); Sullivan v. Kidd, 254 U.S. 433, 442 (1921) (same); United States v. O’Donnell, 303 U.S. 501, 511 (1938) (same). See supra Part II.A.

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of the twentieth century, the Supreme Court refused to follow opinions of the Executive on the interpretation of a treaty, absent such evidence of formal executive branch practice.236

III. A Portent of Significant Change: The Supreme Court’s Sanction of Sole Executive Agreements The starkest example of change – perhaps even revolutionary change – in treaty law between 1901 and 1945 is certainly the judicial recognition of executive agreements. The Constitution nowhere mentions the possibility of international agreements made by the President without the approval of the Senate as prescribed for treaties in Article II. Nonetheless, during the first half of the twentieth century, the Supreme Court, under the forceful pen of Justice George Sutherland, gave judicial sanction to the practice. Indeed, the broad rhetoric of the two famous cases on this score, United States v. Belmont237 and United States v. Pink,238 opened a seemingly unlimited field for international commitments at the sole discretion of the President. These opinions are at the foundation of Professor White’s conclusion that “by the late 1930s federal executive hegemony in foreign relations had become constitutional orthodoxy.”239 The endorsement of sole executive agreements also reflected a striking departure from the Supreme Court’s treaty-centric jurisprudence of the early twentieth century. As we have seen, the Court’s opinions in the period were marked by a serious, almost formalistic, adherence to the constitutional scheme for the adoption of treaties and to the obligation of courts to apply them faithfully as supreme federal law, even against the Executive. With its sanction of executive agreements, however, the Court abandoned the Constitution’s text entirely, to a point that seemingly left the President broad discretion to decide which international agreements would be submitted to the Senate. Some confrontation over the legal effect of executive agreements had become inevitable as the United States became substantially more active in global affairs during the latter half of the nineteenth century and, especially, the first half of the twentieth. As Professor White has chronicled, this engagement led to an increasing reliance by the Executive on direct international agreements when the treaty process appeared too formal, slow, or cumbersome.240 Included prominently among these were reciprocal trade agreements concluded under express authority of Congress, limited military arrangements made under the President’s constitutional status as Commander-in-Chief, understandings of a purely transitory nature (so-called modi vivendi), and agreements that created a mechanism for resolving individual claims against foreign states.241 As 236

237 238 239 240 241

See, e.g., De Lima v. Bidwell, 182 U.S. 1, 181, 194–99 (1901) (declining to follow interpretive views of Executive regarding the legal consequences of a treaty); Johnson v. Browne, 205 U.S. 309, 319–21 (1907) (expressly rejecting executive branch interpretation of treaty); Perkins v. Elg, 307 U.S. 325, 335–42 (1939) (same). 301 U.S. 324 (1937). 315 U.S. 203 (1942). See White, supra note 16, at 5. See id. at 18–20. For a contemporaneous canvass of executive agreements around the turn of the twentieth century, see John Bassett Moore, Treaties and Executive Agreements, 20 Pol. Sci. Q. 385 (1905).


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a result of this increasingly common practice, the subject of non-treaty international agreements was clearly on the scholarly mind of the time.242 The great bulk of these agreements, as contemporary scholars also concluded,243 were constitutionally unproblematic long before Justice Sutherland came on the scene. The Supreme Court had given its sanction to executive trade agreements concluded under delegated authority from Congress in the 1892 case of Field v. Clark244 and again in B. Altman & Co. v. United States in 1912.245 The few modi vivendi of a transitory nature – such as, most prominently, the temporary protocol with Spain at the end of the Spanish-American War246 – found justification through the subsequent formal treaties they contemplated. The President of course also has an independent power to conclude military and other international agreements within the expressly granted powers of Article II.247 Executive agreements that arranged for the settlement of private claims against foreign states also became much more common in the period,248 but 242

243

244 245

246 247

248

See John W. Foster, The Treaty-Making Power Under the Constitution, 11 Yale L.J. 69, 76–80 (1901) (discussing executive agreements); Moore, supra note 241 (comprehensively reviewing the range of contemporary executive agreements); Samuel B. Crandall, Treaties: Their Making and Enforcement 102–04 (2d ed. 1916) (discussing executive agreements); Butler, supra note 17, at 367–74 n.2 (reviewing the “protocols and diplomatic agreements” not submitted to the Senate for approval). For later analyses, see David M. Levitan, Executive Agreements: A Study of the Executive in the Control of the Foreign Relations of the United States, 35 Ill. L. Rev. 365 (1940); Honoré Marcel Catudal, Executive Agreements: A Supplement to the Treaty-Making Procedure, 10 Geo. Wash. L. Rev. 653 (1942). For an example of political debates over the issue around the turn of the century, see 59 Cong. Rec. 1417–21, 2125–48 (1906) (setting forth parts of the debates in the Senate concerning President Theodore Roosevelt’s proposed agreement with Santo Domingo); see also Moore, supra note 241, at 386–88 (describing the background of these debates). See Moore, supra note 241, at 417 (concluding, based on the example of executive claims settlement agreements, that “the position that the president can make no agreement with a foreign power, except in the form of a treaty approved by the Senate, cannot be maintained”); Foster, supra note 242, at 77 (“There are a class of Executive acts of a diplomatic character which at first glance would seem to be an independent exercise of the treaty-making power, but which in a strict sense cannot be so regarded.”). 143 U.S. 649 (1892). 224 U.S. 583, 600 (1912) (upholding commercial agreement authorized by the Tariff Act of 1897 even though the agreement “was not a treaty possessing the dignity of one requiring ratification by the Senate of the United States”). Executive authority to conclude international agreements may likewise derive from a treaty. See Restatement (Third) of the Foreign Relations Law of the United States § 303(3) (1987) (observing that “the President may make an international agreement as authorized by treaty of the United States”); S. Comm. on Foreign Relations, Treaties and Other International Agreements: The Role of the United States Senate, S. Rep. No. 106–71, at 5 (2001) (stating that “[s]ome executive agreements are expressly authorized by treaty or an authorization for them may be reasonably inferred from the provisions of a prior treaty” and listing examples). See Protocol of Agreement art. V, Aug. 12, 1898, U.S.-Spain, 30 Stat. 1742. See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 432–36 (1902) (chronicling the numerous historical agreements by which the President authorized the entry of foreign troops into the United States and observing that “[w]hile no act of Congress authorizes the Executive Department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander-in-chief of the military and naval forces of the United States”); see also Restatement (Third) of Foreign Relations, supra note 245, § 303(3) & cmt. g (stating that the President may conclude sole executive agreements “within his independent powers under the Constitution”). John Bassett Moore comprehensively reviewed the subject in 1901 and observed, perhaps with a bit of exaggeration, that “[i]t would be a work of supererogation to attempt to cite all the cases in which the executive of the United States has settled individual claims against foreign governments without reference to the Senate.” Moore, supra note 241, at 408. Agreements to facilitate postal cooperation were another common type, but as White has observed, these “had apparently never been regarded as requiring Senate ratification.” See White, supra note 16, at 19.

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that form of international agreement already had an established constitutional pedigree founded on the longstanding acquiescence of Congress.249 The challenge that arose around the turn of the twentieth century came in the form of new executive agreements that were unsupported by either express constitutional authority or congressional delegation. Although they were not numerous, prominent examples from the early years of the twentieth century include the agreement with China at the end of the Boxer Rebellion and certain “protocols” with Japan and China, none of which the President submitted to either the Senate or Congress as a whole for approval.250 It was in this context that Justice Sutherland saw another opportunity to entrench his long-held theory of “extraconstitutional” foreign relations powers.251 Justice Sutherland most famously laid out his broad views on national, and especially executive, authority in the field of foreign affairs in United States v. Curtiss-Wright Export Corp. in 1936.252 He also observed there, in pure dicta, that these “powers of external sovereignty”253 included an independent executive right “to make such international agreements as do not constitute treaties in the constitutional sense.”254 The sole authority cited for this proposition was B. Altman & Co. v. United States,255 but that case involved an agreement concluded by the President under express authority delegated by statute.256 Justice Sutherland nonetheless found an opportunity to extend his views on executive agreements beyond dicta only one year later in United States v. Belmont.257 That case involved an international agreement – the Litvinov Agreement – that took the form of a simple exchange of letters between President Franklin Roosevelt and Soviet Foreign Secretary Maxim Litvinov without the involvement of the Senate. Through this agreement, the United States recognized the Soviet Union as the legal government of Russia and in return received an assignment of all claims of the Soviet Union against American nationals. One such claim involved assets held by Belmont that had been nationalized by the Soviet Union. The dispute arose when Belmont refused to turn over the assets to the United States.258 In his opinion for the Court, Sutherland first declared that the “competence of the President” to conclude the agreement with the Soviet Union and accept the assignment 249

250 251 252 253 254 255 256 257 258

See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (observing that the practice of executive settlement of private claims against foreign sovereigns “goes back over 200 years, and has received congressional acquiescence throughout its history”). Moreover, as one scholar observed at the time, claims settlement agreements were founded on the accepted notion that claims against a foreign sovereign were contingent on executive intervention in any event. See Foster, supra note 242, at 77 (observing that the arguments for the validity of executive claims settlement agreements “proceed[] upon the accepted theory that all claims of private citizens against foreign governments are subject to political exigencies, and it is within the discretion of the Executive to urge them diplomatically upon the foreign government or not”). For more on these protocols, see White, supra note 16, at 19–21; Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 818 nn.62–63 (1995) (describing these agreements). For a comprehensive analysis of George Sutherland’s extensive scholarly writings before his appointment to the Supreme Court in 1922, see White, supra note 16, at 46–62. 299 U.S. 304 (1936). Id. at 318; see also id. at 319 (emphasizing in this context that “the federal power over external affairs in origin and essential character [is] different from that over internal affairs”). Id. at 318. 224 U.S. at 600–01. Id. at 600–01 (observing that executive agreement at issue was “a compact authorized by the Congress of the United States”). 301 U.S. 324 (1937). Id. at 325–27.


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of claims “may not be doubted.”259 Citing, again, solely B. Altman & Co.260 as supposed authority, Sutherland reasoned that the agreement with the Soviet Union simply was not a treaty, “as that term is used in the treaty making clause of the Constitution (article 2, § 2),” that would require the consent of the Senate.261 This observation alone reflects a significant moment in the treaty law of the United States. But Justice Sutherland also used the occasion of the Litvinov Agreement to undertake a broad exposition of the preemptive force of such unilateral international commitments made by the President. His sole focus in this effort, once again, was the Constitution’s allocation of authority over foreign affairs exclusively to the national government. “Plainly,” he declared, “the external powers of the United States are to be exercised without regard to state laws or policies.”262 From this largely uncontroversial proposition, Justice Sutherland made an unsupported leap to the preemptive effect of all international agreements of whatever source or form. He did so, citing only his own opinion in Curtiss-Wright, by conflating sole executive agreements with Article II treaties under the force of the Supremacy Clause: [W]hile th[e] rule in respect of treaties is established by the express language of clause 2, article 6, of the Constitution, the same rule would result in the case of all international compacts and agreements from the very fact the complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states. In respect of all international negotiations and compacts . . . state lines disappear. As to such purposes the state of New York does not exist.263

From this expansive foundation, Justice Sutherland had no difficulty concluding that the President had an independent power, free from the interference of state law, to recognize the Soviet Union and assume its claims against U.S. citizens.264 The Supreme Court reaffirmed this holding in a derivative 1942 case, United States v. Pink.265 In relevant respects, the facts in Pink were the same as those in Belmont. The only distinction was that in the interim New York state courts – following a signal by Justice Stone concurring in Belmont266 – had declared a state public policy requiring that the assets expropriated by the Soviet Union first be used to satisfy creditors in Russia.267 The Pink court – now speaking through recently appointed Justice William Douglas – found that its holding in Belmont on the force of executive agreements controlled this case as well.268 In doing so, it also restated the observation in Belmont that, in relation to state law at least, executive agreements are of “similar dignity” with treaties under the 259 260 261 262 263 264 265 266

267 268

Id. at 330. 224 U.S. at 600–01. 301 U.S. at 330. Justice Sutherland cited as illustrations “a protocol, a modus vivendi, a postal convention,” which, as noted earlier, had become increasingly common in the era. See supra pp. 218–20. Id. at 331. Id. Id. at 332–33. 315 U.S. 203 (1942). See United States v. Belmont, 301 U.S. 324, 334 (1937) (Stone, J., concurring) (observing that the Court’s decision there was “without prejudice to the rights of any other parties” to claim that enforcement of rights expropriated by the Soviet Union and assigned to the United States violates the public policy of the State of New York). 315 U.S. at 210–15, 228–29. Id. at 222.

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Supremacy Clause.269 In consequence, “[s]tate law must yield when it is inconsistent with or impairs the policy or provisions of a treaty or of an international compact or agreement.”270 The Supreme Court in Pink indicated, however, that the preemptive effect of the executive agreement at issue was tied directly to the President’s accepted power to recognize foreign governments.271 It emphasized at length that the President may exercise this power without the formal consent of the Senate and free from judicial oversight.272 The Court saw the actions of New York courts as a targeted attempt to interfere with the foreign policy of the national government – as an “official disapproval or nonrecognition” of the “underlying policy adopted by the United States when it recognized the Soviet Government.”273 Because the settlement of claims was an integral element of the agreement on the recognition of the Soviet Union, the Court concluded that the removal of state law obstacles to its enforcement was a “modest implied power of the President.”274 Ultimately, the Supreme Court’s early-twentieth-century jurisprudence on sole executive agreements endorsed an approach that left a strikingly broad field for unilateral executive action in the field of foreign affairs. Although such agreements were already common at the time, the Court’s opinions in Belmont and Pink sanctioned the power of the President to conclude executive agreements without involving the Senate. This freed the President to conduct foreign affairs and conclude formal commitments under international law without the constitutionally prescribed Senate oversight for treaties. Moreover, as we have seen previously,275 the Supreme Court disclaimed any role for the judicial branch in supervising the international law incidents of treaties unhinged from their force in domestic law. The effect has been substantial: in the fifty years after 1945, the executive branch concluded more than 15,000 sole executive agreements.276 The more challenging issue arises where an executive agreement purports to have domestic law effects – to create powers, rights, or obligations for legal entities with standing to enforce them in domestic courts. Taken solely for its narrow holding, the decision in Belmont is not revolutionary. The Supreme Court had long accepted, as we have seen, the Executive’s “conclusive” authority to recognize foreign governments277 as incident to the President’s independent Article II power over ambassadorial relations.278 The right of the executive branch to accept an assignment of claims likewise is hardly

269 270 271 272 273 274 275

276 277 278

Id. at 230. Id. at 230–31. Id. at 229. Id. (also observing that the matter is “a political rather than judicial question”). Id. Id.; see also id. (observing that the power of recognizing foreign governments “includes the power to determine the policy which is to govern the question of recognition”). See supra p. 207; Barker v. Harvey, 181 U.S. 481, 488 (1901) (noting that the Supreme Court “has no power” to enforce international treaty obligations denounced by the United States); see also Head Money Cases, 112 U.S. 580, 580 (1884) (observing that where a treaty does not of its own force create judicially enforceable domestic law, “its infraction becomes the subject of international negotiations and reclamations . . . [and] with all this the judicial courts have nothing to do and can give no redress”). See United States Department of State, Treaties and Other International Agreements Concluded During the Year (March 2005). See supra p. 196. See U.S. Const. art. II, §§ 2, 3.


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problematic. (One may posit with some confidence that Belmont would have come out the same way if the assignee had been a private party, not the United States.279 ) The problem arises from the nearly unlimited rhetoric, in both Belmont and Pink, on the domestic law force of sole executive agreements. With its myopic focus on issues of federalism, Justice Sutherland’s opinion in Belmont seemed to hold that an executive agreement may preempt any and all state laws by presidential fiat. This view disregards the separation of powers principles that regulate the allocation of authority within the national government. It wrongly assumes that the existence of a national power in relation to the states means that the President may exercise that power alone – that is, without regard to constitutionally prescribed procedures for the creation of federal law and, more specifically, without the express or implied approval of Congress.

IV. Conclusion A book such as this presents an opportunity to contribute to our understanding of the jurisprudence of the Supreme Court in two principal but interrelated ways. For the period 1901–45, my goal was, first, to provide a comprehensive review of the Court’s treaty case law. By capturing the universe of treaty opinions, we are able to separate system from exception, general from specific, and trend from anomaly. The most striking feature in this respect is the sheer volume of treaty cases – more than three hundred in all – decided by the Supreme Court in the period from the turn of the twentieth century to World War II. The more important value of an enterprise such as this, however, comes through a distillation of the accumulated insights into themes and trends located, significantly, within their broader jurisprudential context. In condensed summary, my review leads me to conclude that the period 1901–45 was very much the golden age of treaties. In an age of waning faith in formalism, the treaty jurisprudence of the Supreme Court in this period was marked by a serious, almost simplistic, fidelity to the Constitution’s inclusion of treaties within the supreme law of the land. In application of this positive law command, the Court routinely enforced treaties against individuals, the States, and the federal government alike – and with only a rare pause to mention that some treaties may not “operate of themselves” as directly applicable, judicially enforceable law. Moreover, the Court’s treaty opinions gave no indication that separation of powers principles might counsel deference to the political branches in the enforcement of treaty rights, even when asserted by individuals against the federal Executive. To the contrary, one has the clear impression that separation of powers principles were at the foundation of the Court’s special respect for the distinctive constitutional status of treaties. Thus the Court definitively concluded, confirming instincts of the past, that the treaty power is not subject to otherwise applicable States’ rights or similar substantive limits on federal lawmaking powers. But more generally, the Court’s treaty cases reflect the actions of a faithful agent with a special responsibility to ensure – in the context of 279

The complicating factor would be the force and contours of the act of state doctrine under the specific facts of the case. See Restatement (Third) of Foreign Relations, supra note 245, § 443. But Justice Sutherland’s own opinion in Belmont declared that the expropriations by the Soviet Union at issue there were not a matter for review by U.S. courts. See 301 U.S. at 332 (“What another country has done in the way of taking over property of its nationals, and especially its corporations, is not a matter for judicial consideration here.”).

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an actual case or controversy – that treaties are upheld “with the most scrupulous good faith.”280 To this end, the Court reinforced and repeatedly applied a purposive approach to treaty interpretation and a liberal presumption in favor of the recognition of treaty rights, especially individual rights. As the United States assumed a leadership role in international legal cooperation early in the twentieth century, the design of this liberal approach was to ensure that the judiciary was not the agent that breached the country’s treaty obligations. Already by the end of this golden age of treaties, however, a marked transformation in the jurisdiction and composition of the Supreme Court as well as the status of the United States in world affairs opened the door for serious change. The Judiciary Act of 1925 first eliminated appeals as of right on most treaty issues in favor of review at the discretion of the Supreme Court. Between 1937 and 1945, newly appointed Justices also replaced the entire membership of the Court. At the same time, the onset of nearly a decade of global warfare (followed by even greater threats from the Cold War) amplified the significance and the complexity of foreign affairs for the United States. The expansive claims of post–World War II human rights conventions to displace domestic public law further complicated the traditional judicial station in the enforcement of treaties. Indeed, toward the end of the period the Supreme Court planted the seeds for a substantial erosion of the preeminence of Article II treaties in foreign affairs. In what may be the most enduring practical legacy of the period, the Court sanctioned an executive power to conclude binding international agreements without complying with the constitutionally prescribed procedures for the approval of treaties. In the decades that followed, the ability to enter into such agreements without Senate oversight freed the executive branch to attend to the increased foreign responsibilities of the United States with both dispatch and the formality secured by international law. The Court’s expansive rhetoric at the time on the domestic law force of such non-treaty agreements has fomented controversies that have continued to this very day. Yet in the external realm, the express endorsement of sole executive agreements opened in the decades to come a seemingly unlimited field for unilateral executive control over our country’s foreign affairs. 280

Tucker v. Alexandroff, 183 U.S. 424, 437 (1902) (quoting 1 James Kent, Commentaries on American Law 174 (1836)).

7 Customary International Law in the Supreme Court, 1901–1945 Michael D. Ramsey∗

The U.S. Supreme Court’s most momentous case for customary international law in the early twentieth century – and perhaps in its entire history – involved a man injured while walking home along a railroad track in Pennsylvania. Erie Railroad Co. v. Tompkins,1 a wholly domestic tort case decided in 1938, fundamentally changed the way federal courts think about common law. In doing so, it had important yet inscrutable implications for how federal courts should think about customary international law – implications that remain debated to this day. The story of the Supreme Court and customary international law in the early twentieth century is, therefore, to a large extent a story about Erie. That is so as well because in other respects the early twentieth century was not a fertile period for the direct application of customary international law in U.S. courts. Many staples of international law adjudication in the nineteenth century – pirates, prizes, and privateers – faded or disappeared altogether. The United States of course played an increasingly prominent role on the world stage through its acquisition of overseas territory, its participation in two world wars, and its engagement with an increasingly transnational economic system. But for various reasons these events did not produce an extensive record of the direct application of customary international law. Among other things, the period saw a rise of treaties and statutes, often reducing customary international law’s role to a supporting one as a tool of interpretation.2 Further, domestic constitutional rules, especially under the Fourteenth Amendment’s Due Process Clause, increasingly replaced international principles in key areas. This relative decline makes Erie appear all the more central and all the more difficult to assess. This chapter reviews the Court’s direct application of customary international law in the early twentieth century, both with respect to Erie’s revolution and outside it. Erie’s prominence makes it natural to divide the period in 1938. Accordingly, the chapter’s principal sections discuss (1) the events leading to Erie, 1901–1937, and (2) Erie itself, its contending interpretations, and its relatively brief aftermath up to 1945. Concededly, the division is somewhat artificial. Aspects of the Court’s approach to customary international law developed without regard to Erie, and although Erie marked a watershed in ∗ 1 2

Professor of Law, University of San Diego School of Law. 304 U.S. 64 (1938). On the use of international law as an interpretive tool during this period, see Chapter 8.

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domestic law, its significance for international law was not widely appreciated at the time. There is a risk, therefore, of giving Erie too much prominence, for which apologies are extended.

I. 1901–1937: The Road to Erie The years leading to Erie featured at least three trends affecting the Court’s direct application of customary international law. The first – central to Erie itself – was a growing debate over the idea of “general” common law. As earlier chapters explain, general common law (an unwritten law arising outside any particular jurisdiction) in federal court dates at least to the early nineteenth century,3 and its expansive application by the Supreme Court characterized that century’s later years. The early twentieth century saw general common law’s force continue to grow in two ways: it extended further into previously local matters and it claimed partial superiority not only over state court interpretations of common law but also over state statutes. This growing force stoked opposition from those who distrusted its concentration of power in the federal courts and who bristled at federal courts’ apparent favoritism toward corporate interests – opposition that laid the groundwork for Erie’s jurisprudential revolution.4 Although international law was not central to these developments, elements of international law played important roles, and the overall context is essential to any attempt to puzzle out Erie’s implications. A second feature of the period was customary international law’s diminishing role as a direct source of rules in the Supreme Court. Many of international law’s nineteenthcentury judicial subjects themselves declined almost to oblivion. In addition, constitutional adjudication, treaties, and statutes occupied fields in which customary international law previously played a large part, relegating it to a supporting role or crowding it out altogether. Further – although the matter must be stated cautiously – one can discern a blurring of the line between true international law and principles of general common law. To some extent, the Court came to see transnational matters more as governed by a “public law” in part of international origin, but not distinctly so. International law, historically considered a branch of general common law by U.S. courts, became more subsumed within it. The period’s third trend is closely related to the first two. The Paquete Habana, decided in 1900 and described in Chapter 3, was the Court’s last great prize case and the source of its famous yet elusive declaration that “international law is part of our law.”5 The Paquete Habana was, moreover, a definitive exposition of the positivist and empirical conception of international law, famous as well for Justice Horace Gray’s exhaustive study of the practices of other nations on the subject at hand.6 As Chapter 3 recounts, The Paquete Habana’s international law positivism centered on the idea that international law arose from the common consent of sovereigns, manifested by their longstanding practices, and thus that it should be identified empirically by investigating those 3 4 5 6

Chapter 1, pp. 27–28; Chapter 3, pp. 114–20. On these developments, see especially Edward A. Purcell, Jr., Brandeis and the Progressive Constitution 11–191 (2000). 175 U.S. 677, 700 (1900); see Chapter 3, pp. 98–99. See 175 U.S. at 686–700.


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practices.7 But The Paquete Habana proved to be a high-water mark of international law positivism in the Supreme Court, in part because of the trends just described, even as positivism gained ground internationally early in the new century.8 General common law, as the early-twentieth-century Court applied it, was not heavily tied to customary practices; as it gradually subsumed international law, the positivism of The Paquete Habana (and its strict link to nations’ practices) also declined. These trends set the stage for Erie and, in particular, for the ambiguity of Erie’s effect on international law adjudication. It is important not to overstate these trends, for the whole story of the period cannot be fit within them, and they were not fully identified in their time; nonetheless, they make convenient markers for discussion. In addition, this section considers the relationship between international law and the political branches of the U.S. federal government, a relationship on its face only tangential to Erie.

A. General Common Law, Customary International Law, and Preemptive Law The fundamental matter on which Erie turned, and on which it worked a legal revolution, was the question of what law federal courts applied in the absence of enacted federal law. Previous chapters have described how Swift v. Tyson in 1842 embodied the basic nineteenth-century understanding of “general” common law.9 Courts in common law cases, Justice Joseph Story explained in that case, did not ordinarily conceive their role as making or applying the law of a particular jurisdiction. Rather, they saw themselves as engaged in a collective enterprise to “find” a general law that applied across jurisdictions throughout the common law world. A state court’s exposition of common law – except in matters that were purely “local” such as title to real estate – was not a declaration of the State’s law, but rather an opinion regarding the content of this “general” law. As a result, other courts (especially federal courts in diversity cases) were not bound by state courts’ views of the general law. State courts’ views might be persuasive, but no more. That was so, Story thought, even in light of Section 34 of the 1789 Judiciary Act,10 which directed federal courts, in the absence of applicable federal law, to use state law where it applied. The Act’s reference to “state law,” Story continued, did not encompass state courts’ common law decisions, because these decisions were opinions on general law, not declarations of state law. His central analysis proceeded as follows: In all the various cases, which have hitherto come before us for decision, this court have uniformly supposed, that the true interpretation of the 34th section [of the Judiciary Act] limited its application to state laws, strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed 7

8 9 10

See Chapter 3, p. 99. To be clear, international law positivism in this sense is distinct from the domestic law positivism associated with Justice Oliver Wendell Holmes, Jr. that saw law as necessarily arising from the command of a sovereign. See infra p. 229, n. 19. See 1 Lassa Oppenheim, International Law 114–18 (3d ed. 1920) (discussing the rise of positivism in international law theory). 41 U.S. 1 (1842); see Chapter 1, pp. 27–28; Chapter 3, pp. 114–20. 1 Stat. 73, 92.

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and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.11

On Swift’s merits, Story declined to follow the New York courts’ view of the law of bills of exchange (New York being the State where the dispute originated) and instead articulated a distinct federal rule.12 Swift made a certain amount of sense in its time.13 State courts in the early nineteenth century often did think of themselves as finding and applying a “general” law in common law cases that was different from state law. That view was especially appropriate and understandable in cases like Swift itself. The common law of bills of exchange was an aspect of international commercial law, which in particular was commonly understood as part of the “law merchant” (lex mercatoria) that applied to commercial transactions regardless of their location; it was often described as a branch of the law of nations. In Story’s words, “The law respecting negotiable instruments may be truly declared . . . to be in a great measure, not the law of a single country only, but of the commercial world.”14 Although reasonable enough at its inception, the Swift system began to lose its foundations in the late nineteenth century.15 State courts came more to think of themselves as applying a common law of the State, even outside the narrow sorts of common law cases Story had identified as purely “local.” And federal courts in diversity cases increasingly applied general common law to subjects that, unlike Swift’s commercial law, had less obvious bases in general as opposed to local law, such as torts, insurance, and punitive damages.16 As a practical result, federal courts’ general common law gained broader application even as it became less theoretically defensible. So matters stood at the beginning of the twentieth century. Swift had not been controversial in its time, but Justice Stephen Field launched a wide-ranging judicial attack on its basic assumptions in an 1893 dissent, pointing to fundamental tensions in the Swift approach and arguing that federal courts were using it illegitimately “to control a conflicting law of a state.”17 Justice Oliver Wendell Holmes, Jr., who became a preeminent figure on the Court after his appointment in 1902, took up and expanded Field’s attack.18 As described more fully later in this chapter, Holmes’s theoretical objections rested on a 11 12

13

14 15 16 17 18

41 U.S. at 18–19. Id. at 19–20. Note that, by comparable reasoning, Swift’s “federal” rule would not bind future New York courts on the same matter, because the “federal” rule was – like the “New York” rule – just an opinion on the content of general law and enjoyed no superior authority. See, e.g., Pa. R.R. Co. v. Hughes, 191 U.S. 477, 486 (1903) (making this point). For two outstanding and influential accounts, see Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1276–89 (1996) (describing Swift’s jurisprudential foundations), and William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984) (showing that Swift’s approach was not novel, but dated at least to the earliest years of the nineteenth century). 41 U.S. at 19. Clark, supra note 13, at 1290–92. E.g., Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368 (1893). Id. at 411 (Field, J., dissenting). For his opening salvo, see Kuhn v. Fairmont Coal Co., 215 U.S. 349, 371–72 (1910) (Holmes, J., dissenting).


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positivist conception of law as necessarily arising from a sovereign command. If that was correct, the whole edifice of Swift was unsound, resting as it did on the idea of a general common law that courts could “find” outside the compass of any particular sovereign.19 Opposition to Swift’s system mounted as well in academic and political commentaries and in Congress during the twentieth century’s first decades. In particular, the perception that the Court was favoring national corporate interests over local reform efforts – a perception reinforced by the Court’s jurisprudence in other areas, most notably Lochner v. New York20 and related cases – lent a political dimension to the criticism.21 In retrospect one can see in the Swift doctrine’s widening internal tensions and external criticisms the forces that led to its eventual overthrow in Erie. In the early twentieth century, however, general common law seemed secure and indeed of growing force, as the Court pressed it further into areas one might have thought clearly governed by state law22 and aggressively wielded it in areas in which it had been found to apply.23 International law, as a general matter, was not central to these developments. As earlier chapters discuss, customary international law was ordinarily understood to be part of general common law, and both state and federal courts applied it in this way.24 (Indeed, Swift – the foundational general common law case – had been in a sense a matter of international law.) Most of general common law’s application and expansion, and most of its opposition, centered on purely domestic matters such as torts. In the early twentieth century, aspects of international law nonetheless ended up on the forefront of two important expansions of general common law at the expense of the States. The first was the law of disputes between States of the Union. Interstate disputes dated to the Republic’s earliest days and generally involved unsettled boundaries. The 1787 Constitution gave the U.S. Supreme Court jurisdiction over these disputes without 19

20

21 22 23 24

See infra pp. 232–33. The positivism associated with Holmes, which we might call domestic law positivism, must be carefully distinguished from the international law positivism associated with The Paquete Habana and described in Chapter 3. To oversimplify, positivism in general maintains that law does not exist apart from the sovereign will of a lawmaker (thus the aphorism that law is made, not found). This proposition has different implications for international law and domestic law. International law, in the phase of rising positivism in the late nineteenth century, faced the problem that there was no international sovereign; it attempted to resolve that challenge by concluding that international law was made not through the command of one sovereign but through the consent of many sovereigns. Thus, at least in theory, its method was empirical, looking to the general practice of sovereigns to find consent – an approach that reached its height in the U.S. Supreme Court in The Paquete Habana. See Chapter 3, p. 99. Domestic law positivism, in contrast, confronted the issue of locating lawmaking authority within a single nation. It reasoned that if law was made not found, then an institution purporting to find law – namely, a court – was in fact making it and must have sovereign authority to do so. In this description, to domestic law positivists such as Holmes, Swift fundamentally failed to explain how federal courts could have authority to make common law for the States. See William S. Dodge, Customary International Law and the Question of Legitimacy, 120 Harv. L. Rev. F. 19, 22–23 (2007). 198 U.S. 45 (1905) (finding that the Fourteenth Amendment’s supposed principle of “substantive” due process limited New York’s ability to establish maximum hours laws). As Professor Purcell observes, “Swift was the private law counterpart of the public law doctrine of substantive due process – twin pillars of the activist federal judiciary that had crimped and barred progressive reforms for half a century.” Purcell, supra note 4, at 191. See Purcell, supra note 4, at 64–85. E.g., Kuhn, 215 U.S. at 360–61 (land subsidence caused by mining operations); W. Union Tel. Co. v. Call Publ. Co., 181 U.S. 92 (1901) (price discrimination in contracts). E.g., N. Pac. Ry. Co. v. Dixon, 194 U.S. 338 (1904) (fellow servant rule). Compare id. at 347–56 (White, J., dissenting). See Chapter 1, pp. 27–28; Chapter 3, pp. 114–20.

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specifying what law should resolve them.25 Especially with respect to land boundaries, typically the dispute turned on interpretation of a treaty, land grant, or act of Congress establishing the borders of a State. The Court often used international law as an interpretive guide to resolve disputed interpretations, but these cases usually did not involve direct application of international law.26 Not all interstate disputes involved boundaries, and in these cases the governing law was more problematic. Kansas v. Colorado became a pivotal case in the twentieth century’s first decade. The dispute concerned rights to water in the Arkansas River, which rose in Colorado and flowed into Kansas. Kansas challenged Colorado’s diversion of the water. The acts of Congress admitting the two States said nothing relevant about water rights. In taking up the case in 1902, the Court made clear that it would apply, among other things, customary international law. In interstate disputes, Justice David Brewer wrote, “sitting, as it were, as an international, as well as a domestic tribunal, we apply federal law, state law and international law, as the exigencies of the particular case may demand.”27 This result may seem a natural conclusion, because the States’ constitutional relationship to each other is to some extent analogous to that of international sovereigns. Yet customary international law (and general common law more broadly) had in general not been used under the Swift system to control the sovereign actions of the States; it had been used, in default of state statutory law, to resolve private common law cases.28 In Kansas v. Colorado the Court appeared to say that customary international law principles might override positive state law, albeit in the narrow context of interstate disputes. The basis for that conclusion remained elusive. In 1906, Justice Holmes, writing for the Court, rejected a complaint by Missouri that Illinois was wrongfully polluting the Mississippi River. In the absence of a federal statute, “[t]he only ground on which [a] state’s conduct can be called into question,” he wrote, “is one which must be implied from the words of the Constitution.”29 Holmes acknowledged that the Court had jurisdiction under Article III over disputes between States, and “[t]herefore, if one state raises a controversy with another, this court must determine whether there is any principle of law, and, if any, what, on which the plaintiff can recover.” But, he added pointedly, “the fact that this court must decide does not mean, of course, that it takes the place of a legislature.”30 Nonetheless, in the next round of the Kansas v. Colorado litigation in 1907, the Court (citing The Paquete Habana) reaffirmed that international law was an appropriate rule of decision31 and found Colorado’s activities constrained by equitable 25 26 27

28

29 30 31

U.S. Const. art. III, § 2. E.g., Iowa v. Illinois, 147 U.S. 1 (1893) (construing 1769 treaty between Britain and Spain and Act of Congress of April 18, 1818). 185 U.S. 125, 146–47 (1902). This was not an entirely novel point, as the nineteenth-century Court routinely used customary international law to construe instruments establishing boundaries and on occasion indicated that customary international law could apply directly to such disputes. See Rhode Island v. Massachusetts, 37 U.S. 657, 749 (1838); Chapter 1, p. 31. But Kansas v. Colorado declared the practice in a particularly forthright way. As Swift made clear, its analysis turned fundamentally on state common law decisions not being an expression of state law – an analysis that plainly did not apply to state statutes. Indeed, Swift’s analysis expressly depended on a distinction between common law and statutes. See 41 U.S. 1, 18–19 (1842); supra pp. 227–28. Missouri v. Illinois, 200 U.S. 496, 519 (1906). Id. Holmes nonetheless went on to address the merits, acknowledging that the Court would sometimes need to intervene in interstate disputes, but found that Missouri had not made a compelling case. 206 U.S. 46, 97 (1907).


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principles it described as “interstate common law” that through “successive disputes and decisions this court is practically building up.”32 Subsequent interstate disputes similarly failed to explain (or often even to worry about) how customary international law or general law principles overrode state actions or enactments.33 A decade after Kansas v. Colorado the Court went further in Southern Pacific Co. v. Jensen.34 Jensen was a maritime case, in the sense that it involved the workplace death of a longshoreman at the Port of New York. Jensen was also a workers’ compensation case, arising under New York’s statutory compensation scheme and decided as an initial matter by the New York state courts. The question, as the Court framed it, was whether to apply the general maritime law (which could be understood as a branch of international law)35 or the New York statute. In earlier cases under its admiralty and maritime jurisdiction, the Court had routinely applied general maritime law, but Jensen arose in the state courts and unlike prior cases there was a conflicting state statute directly on point. The Court nonetheless held (5–4) that the state statute could not provide a remedy contrary to the essential features of general maritime law. It began by observing that “in the absence of some controlling [federal] statute, the general maritime law, as accepted by the federal courts, constitutes part of our national law, applicable to matters within the admiralty and maritime jurisdiction.”36 Although true as a matter of practice, this statement finessed the relationship between general maritime law and state law. General maritime law was a branch of general common law. Naturally federal courts applied it, absent other applicable law, in keeping with the system Swift articulated.37 But Swift alone would not have made general maritime law controlling over New York’s statute. On that point, the Court continued: [I]t would be difficult, if not impossible, to define with exactness just how far the general maritime law may be changed, modified or affected by state legislation. That this may be done to some extent cannot be denied. . . . Equally well established is the rule that state statutes may not contravene an applicable act of Congress or affect the general maritime law beyond certain limits. . . . No such [state] legislation is valid if it . . . works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. This limitation . . . is essential to the effective operation of the fundamental purposes for which such law was incorporated into our national law by the constitution itself.38 32

33

34 35 36 37 38

Id. at 98. On the merits, the Court found that Kansas had not shown Colorado to have acted inequitably. It also found, somewhat remarkably, that Congress had no power to interfere, so that law in the area had to come from the Court. On the significance of Kansas v. Colorado, see Purcell, supra note 4, at 57–59. E.g., Maryland v. West Virginia, 217 U.S. 1, 44 (1910) (relying on international law publicists Vattel, Wheaton, and Oppenheim to find a rule that long acquiescence in a boundary line becomes binding); Wyoming v. Colorado, 259 U.S. 419, 470 (1922) (relying on principles of “right and equity” of unspecified source to decide against Colorado in water rights dispute); New Jersey v. New York, 238 U.S. 336, 342–43 (1931) (in water rights dispute, seeking an “equitable apportionment”); Connecticut v. Massachusetts, 282 U.S. 660, 670–71 (1931) (referring to “equitable apportionment,” “right and equity,” and “interstate common law” in resolving water rights dispute). 244 U.S. 205 (1917). On the significance and dubiousness of Jensen, see Ernest A. Young, Preemption at Sea, 67 Geo. Wash. L. Rev. 273 (1999); Purcell, supra note 4, at 175–76. On the development of general maritime law in the nineteenth century, see Chapter 3, pp. 92–99. 244 U.S. at 215. See Fletcher, supra note 13, at 1538–75. 244 U.S. at 216.

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With the question framed this way, the Court found the New York statute to be maritime in nature and “so applied, it conflicts with the Constitution.”39 Holmes and Justice Mahlon Pitney wrote lengthy dissents. Pitney objected that while the Court had previously applied general maritime law as an aspect of the Swift system, it had never held that state courts were obliged to follow the federal rule or that general maritime law could displace a state statute.40 His central point was that Article III’s grant of admiralty jurisdiction did not create any special role for federal courts in creating the substantive law to be applied – and thus, as in ordinary general law cases, the States were free to go their own way. In fact, the prior law was a little more unsettled than Pitney suggested. In The Roanoke in 1903, the Court invalidated a Washington statute creating a ship lien purportedly enforceable in admiralty, on the ground that it interfered with Congress’s exclusive powers.41 But four years later the Court – per Holmes – in The Hamilton upheld a Delaware statute that created a wrongful death action for a collision on the high seas.42 Thus it was not clear when and whether state laws would be applied in admiralty. Pitney seemed to be correct that the Court had not previously interfered with a state court decision depending on a state statute, although it was unclear why the Roanoke rule would not extend equally to actions arising in state court. At the same time, it was also not clear why The Hamilton did not protect the state statute in Jensen (and the Jensen majority all but ignored it). Holmes’s dissent – joined by Pitney and newly appointed Justices John Clarke and Louis Brandeis – reached further and became a classic expression of the domestic law positivism with which Holmes was already firmly associated. Common law, Holmes said, had to come from somewhere. It was not, he continued in a line that has become an aphorism, a “brooding omnipresence in the sky.”43 If the State had a law on point (as it did in Jensen), that law could only be displaced by law that came from a superior source. General maritime law came from no sovereign source at all. Because the Constitution did not give maritime matters exclusively to the federal government (as The Hamilton held) and because there was no relevant federal statute, there was nothing to displace the New York law. In a sense, then, the Jensen dissent merely continued Holmes’s insistence – reflected in The Hamilton and Missouri v. Illinois – that only law arising from the Constitution could control the States. Yet Holmes’s dissent had much broader implications. If general maritime law (and, by extension, general common law) was not implied by the Constitution, it lacked claim to being law at all. Rather than a “brooding omnipresence,” Holmes wrote, common law was always “the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have 39 40 41

42 43

Id. at 218. Id. at 225–26 (Pitney, J., dissenting). 189 U.S. 185 (1903). In the ambiguous nineteenth-century decision The Lottawanna, 88 U.S. 558 (1875), the Court described uniformity in admiralty law as a constitutional imperative, id. at 575, yet indicated that a Louisiana statute departing from U.S. common law rules would be applied by a federal court in admiralty. Id. at 579–80. Both the majority and the dissent in Jensen invoked The Lottawanna. See Jensen, 244 U.S. at 215–17; id. at 237–42 (Pitney, J., dissenting). 207 U.S. 398 (1907). Jensen, 244 U.S. at 222 (Holmes, J., dissenting).


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forgotten the fact. It always is the law of some state.”44 So Holmes’s objection, although nominally directed at the preemptive effects asserted by the Jensen majority, was really an indictment of the entire Swift system. If law was necessarily the law of some sovereign, general common law as a whole was theoretically untenable: general common law was not just not preemptive – it did not even exist. Thus the Jensen dissent became enshrined as part of Holmes’s masterful groundwork for the Erie revolution.45 Despite the closeness of Jensen’s vote and the strength of the dissents, subsequent cases entrenched the idea that federal courts could apply general maritime law at the expense of state law (and that state courts were obliged to do so as well).46 Coupled with Kansas v. Colorado, Jensen provided some basis to say that customary international law was in part gaining superiority over state law – although it might be more accurate to say that both cases saw a mandate in specific jurisdictional clauses in the Constitution to apply a specific kind of international law.47 Indeed, there was no direct suggestion in these cases that international law comprehensively displaced state law. Jensen and Kansas v. Colorado encompassed particular subjects and particular constitutional clauses. Outside these subjects, customary international law remained (as apparently it had been in the late nineteenth century) simply part of general law in the Swift-ian sense.48 The Court continued, for example, to regard itself as bound by the expanding state codification of what had been general commercial law; Burns Mortgage Co. v. Fried unanimously found that Florida’s version of the Uniform 44 45

46

47

48

Id. Holmes’s greatest exposition was his dissent (joined by Brandeis and Harlan Fiske Stone) in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 533–34 (1928). Swift, he said, was based on the “fallacy” of “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.” There is, he further declared, “no such body of law. . . . The common law so far as it is enforced in a State . . . [is] not the common law generally but the law of that state existing by the authority of that State.” Id. E.g., Chelentis v. Luderback S.S. Co., 247 U.S. 372 (1918). In Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920), the Court held (astoundingly) that Congress could not give States authority to pass laws in derogation of the general maritime law, as Congress attempted to do in response to Jensen. Holmes, joined by Pitney, Clarke, and Brandeis, again delivered a pointed dissent. On the status of the general maritime law, he observed: I do not suppose that anyone would say that the words, ‘The judicial Power shall extend . . . to all Cases of admiralty and maritime Jurisdiction,’ . . . by implication enacted a whole code for master and servant at sea, that could be modified only by a constitutional amendment. But somehow or other the ordinary common law rules of liability as between master and servant have come to be applied to a considerable extent in the admiralty. If my explanation, that the source is the common law of the several States, is not accepted, I can only say, I do not know how, unless by the fiat of the judges. But surely the power that imposed the liability can change it, and I suppose that Congress can do as much as the judges who introduced the rules. For we know that they were introduced and cannot have been elicited by logic alone from the mediaeval sea laws. Id. at 167. Both Jensen and Kansas v. Colorado emphasized the particular jurisdictional clauses of Article III, Section 2: the grant of admiralty and maritime jurisdiction, and the grant of jurisdiction over controversies involving States. The theory apparently was that these clauses conveyed not only jurisdiction but also authority to develop (exclusive of the States) applicable substantive rules. See N.Y. Life Ins. Co. v. Hendren, 92 U.S. 286, 287–88 (1876) (holding that laws of war are part of general common law, not federal law); see also Chapter 3, pp. 117–20 (finding no examples of customary international law functioning as Article III federal law or overriding state statutes, although suggesting that it might have been applied to override a state statute in some circumstances had the issue arisen).

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Negotiable Instruments Act and the state courts’ interpretation of that statute provided the rule of decision in federal court.49 Burns Mortgage directly rejected counsel’s argument, premised on Swift and the mid-nineteenth-century case Watson v. Tarpley,50 that federal courts could develop and apply the lex mercatoria irrespective of state statutes. Such a view of Swift, the Court held, “is not sustained by a careful reading of the opinion in that case,” and to the extent Watson suggested otherwise “what was said there on the subject was unnecessary to the decision, and has not been followed in later cases.”51 Even in the core international law subject of foreign sovereign immunity, the Court held in Oliver American Trading Co. v. Republic of Mexico in 1924 that the existence or nonexistence of immunity was “a question of general law” that did not arise from the Constitution or U.S. statutes.52 Somewhat more obliquely, it appeared to hold summarily in Wulfsohn v. Russian Soviet Federated Socialist Republic that a state court’s decision regarding foreign sovereign immunity did not raise a federal question.53 Similarly, in Johnston v. Compagnie Generale Transatlantique,54 New York’s highest court refused to follow the U.S. Supreme Court’s conclusion in Hilton v. Guyot55 that recognition of foreign judgments as a matter of comity required reciprocity from the foreign nation in question. The New York court rejected arguments (made “with some force”) that “questions of international relations and the comity of nations are to be determined by the Supreme Court of the United States,”56 and the U.S. Supreme Court did not insist otherwise.

B. The Waning of Customary International Law in the Supreme Court As the general common law gained force, customary international law as a distinct proposition began to fade somewhat in direct application cases. In part, this stemmed from a decline in the traditional subjects in which customary international law had been 49 50 51

52

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292 U.S. 487 (1934). 59 U.S. 517 (1856); see Chapter 1, p. 30, n. 207. Burns, 292 U.S. at 495 (relying on section 34 of the Judiciary Act of 1789). The Court cited, among others, Paine v. Central Vermont Railroad Co., 118 U.S. 153 (1886) and Moses v. National Bank of Lawrence County, 149 U.S. 298 (1893) as prominent late-nineteenth-century commercial law cases declining to follow Watson. 292 U.S. at 494 n.8. The Court had pointedly noted in Moses: “It was argued in behalf of the original plaintiff that the validity and effect of the guaranty must be governed by the general common law, without regard to any statute of Alabama. But there can be no doubt that the statute of frauds, even as applied to commercial instruments, is such a law of the state as has been declared by congress to be a rule of decision in the courts of the United States.” 149 U.S. at 303. 264 U.S. 440 (1924). In Oliver, the lower federal court dismissed a claim against Mexico on the basis of foreign sovereign immunity, rejecting the proposition that immunity did not attach until the United States recognized the new Mexican government. The question was whether an appeal could be taken directly to the Supreme Court, under a statute that allowed a direct appeal where a jurisdictional question turned on the Constitution or a federal statute. The Court found no direct appeal permissible because the “question of sovereign immunity is . . . a question of general law, applicable as fully to suits in the state courts as to those prosecuted in the courts of the United States,” and not presenting a question of federal law. Id. at 442–43. To the same effect is Transportes Maritimos do Estado v. Almeida, 265 U.S. 104, 105 (1924). 266 U.S. 580 (1924). Wulfsohn was an appeal from a state court decision dismissing a claim on the basis of foreign sovereign immunity. Citing Oliver, the Court summarily denied jurisdiction. Presumably it intended by this reference to incorporate Oliver’s statement that foreign sovereign immunity was “general law.” See Oliver, 264 U.S. at 442–43. 242 N.Y. 121 (1926). 159 U.S. 113, 163–64 (1895). 242 N.Y. at 386–87.


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directly applied: pirates, privateers, and prizes largely disappeared as professional navies took over the conduct of high-seas warfare. Berg v. British & African Steam Navigation Co. in 1917 showed that such cases might still arise: Berg involved a British ship seized by the German navy in World War I; after the capture, the captors took shelter in a U.S. port (the United States still being neutral at that point). The question was whether the attempt to use a neutral port as a refuge violated international law and thus required restoration of the ship to its British owners. The Court found against the Germans (and found jurisdiction, relying on the eighteenth-century case Glass v. The Sloop Betsey,57 despite the argument that under the law of nations only German courts could adjudicate the prize claim).58 But Berg was an anomaly; no other such cases arose in the period after the Spanish-American War prize cases had been finally resolved.59 Much of the Court’s international docket in the early part of the twentieth century arose from the aftermath of the Spanish-American War and the United States’ consequent acquisition of overseas territories. For the most part these cases did not involve direct application of customary international law because they were governed by statutes or treaties. For example, Juragua Iron Co. v. United States – a case that might have rested directly on customary international law in earlier times – involved destruction of private property in Cuba in the Spanish-American War; because it arose under a statute governing claims against the United States, it was not really a direct application case, although it drew the Court into a discussion of the laws of war.60 More broadly, treaties and statutes proliferated in areas once governed by customary international law. For example, international commercial law (including bills of exchange, the subject of Swift) became widely codified at the state level. By the early twentieth century, little remained of the common law lex mercatoria, and state statutes would have governed a replay of the dispute in Swift in most jurisdictions.61 Developments in constitutional law also displaced customary international law. In the nineteenth century, issues of conflict of laws arising in the States were (in the absence of a state statute) governed by general common law heavily informed by, if not entirely derived from, international law.62 Beginning with Allgeyer v. Louisiana in 1897,63 the Court began to locate conflict of laws principles in the Fourteenth Amendment’s Due Process Clause, ruling in that case that Louisiana could not control the terms of a contract executed and performed in another State because doing so infringed the clause’s supposed 57 58 59

60 61

62 63

3 U.S. 6 (1794); see Chapter 1, p. 24. 243 U.S. 124 (1917). David Bederman, The Feigned Demise of Prize, 9 Emory J. Int’l L. 31 (1995); Theodore Cooperstein, Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering, 40 J. Mar. L. & Com. 221, 251 (2009). 212 U.S. 297 (1909); see Chapter 8, pp. 275–76. Paul B. Stephan, What Story Got Wrong – Federalism, Localist Opportunism and International Law, 73 Mo. L. Rev. 1041, 1049 & n.20 (2008); see William H. Lawrence, Understanding Negotiable Instruments and Payment Systems 7 (2002) (noting that the Uniform Negotiable Instruments Law, drafted in 1896, had been adopted in all States by 1924). Similar developments took place somewhat earlier with respect to letters of credit. See, e.g., The Civil Code of the State of California, as Enacted in 1872, art. 5 (James H. Deering ed., 1897) (codifying letter of credit law). At around the same time, at the federal level maritime law entered an initial period of codification. See, e.g., Harter Act, 27 Stat. 45 (1893); Pomerene Act, 39 Stat. 548 (1916); Carriage of Goods by Sea Act, 49 Stat. 1207 (1936); see also Gerard J. Margone, United States Admiralty Law 73–86 (1997). Chapter 1, p. 29; see, e.g., Ennis v. Smith, 55 U.S. 400, 422–26 (1853). 165 U.S. 578 (1897).

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liberty of contract.64 After the century’s turn, the Court applied this doctrine aggressively to limit States’ extraterritorial regulations of contracts, especially in insurance. Although the limits on extraterritoriality no doubt had their ultimate roots in an international law idea of territorial sovereignty, after 1900 the Court applied them without reference to international law, purely as a matter of the dictates of due process.65 (Of course, this shift had the advantage that the Court could now use conflict of laws principles to control the decisions of state courts and to override state statutes – as it did in Allgeyer and subsequent cases). As the Court generally began retreating from expansive application of the Due Process Clause in the late 1930s, its gradual relaxation of due process limits on extraterritorial state laws likewise did not appeal to international practice.66 In a similar vein, the restrictions on state courts’ exercise of personal jurisdiction over nonresident defendants began as a direct application of international law. Pennoyer v. Neff shifted the doctrine’s basis to the Due Process Clause, while keeping it tethered to its international law moorings,67 but as the Court in the early twentieth century began crafting substantial exceptions to Pennoyer, it abandoned reliance on (or even reference to) international law or practice.68 And as with conflict of laws principles, when the Court ultimately replaced Pennoyer with a more flexible “minimum contacts” regime in International Shoe Co. v. Washington,69 its holding did not rest on international principles. This is not to say that direct application cases ceased altogether. A handful of cases challenging the conduct of U.S. authorities in the aftermath of the Spanish-American War arguably sought direct application of international law.70 The principle that prior laws and rights continued after a cession of territory arose several times – in Vilas v. City of Manila71 with respect to the survival of debts of a municipal corporation, and with respect to the rights of the Catholic Church in Puerto Rico in Ponce v. Roman Catholic Apostolic Church.72 But it is striking, reviewing the period between 1901 and 1945, how few direct application cases there are (especially leaving aside interstate disputes and general maritime cases, which seemed increasingly to fall into their own separate categories). Along with the decline in international law cases, international law began to lose its identity within the general common law. Increasingly the Court referred to principles of 64 65

66 67 68

69 70 71 72

Id. at 592–93. See N.Y. Life Ins. Co. v. Head, 234 U.S. 149 (1914) (resting on liberty of contract derived from Allgeyer); N.Y. Life Ins. Co. v. Dodge, 246 U.S. 357 (1918); Home Ins. Co. v. Dick, 281 U.S. 397 (1930). On these and related cases, see Purcell, supra note 4, at 183–84. E.g., Alaska Packers Ass’n v. Indus. Accident Comm’n, 294 U.S. 532 (1935); Pac. Emp’rs Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493 (1939). 95 U.S. 714 (1878); see Ch. 4, pp. 151–52. For example, Kane v. New Jersey, 242 U.S. 160 (1916), and Hess v. Pawloski, 274 U.S. 352 (1927), allowed state courts to assert personal jurisdiction over nonresident defendants who had been involved in motor vehicle accidents in the State on theories of express or implied consent. In permitting these departures from Pennoyer’s strict territoriality, neither case examined international practice or indeed even acknowledged that any international issue might be at stake. See also Pa. Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917) (allowing State to require nonresident corporation to consent to jurisdiction as prerequisite for doing business in State, without reference to international practice). 326 U.S. 310 (1945). These cases are discussed further infra Part I.D. 220 U.S. 385 (1911) (holding under principles of “public law” that a municipal corporation – the City of Manila – survived the cession to the United States and thus remained liable for pre-war debts). 210 U.S. 296, 319 (1908) (finding Catholic Church had “corporate or jural personality” under the law of nations).


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“public law” – a nineteenth-century phrase, but one that in its twentieth-century form seemed to include but not be limited to principles strictly derivable from customary international law.73 Kansas v. Colorado is an early example. As discussed, in that case the Court ringingly declared its authority to apply principles of international law to the conduct of the States. But international law was only one of an array of sources the Court thought itself able to consult, and the actual decision – in effect, that a principle of reasonableness limited Colorado’s water diversion – seemed to owe little to international law and more to the Court’s own sense of equity. As the Court itself said, it was a matter of “interstate common law.”74 Likewise general maritime law, forcefully applied in cases like Jensen, seemed more a species of common law. Jensen was fundamentally not a case about the international practices of nations, but about the (supposed) need for uniform liability rules throughout the United States. Two related cases decided in 1918 suggest a similar trend. Oetjen v. Central Leather Co. and Ricaud v. American Metal Co. involved seizures of personal property by the revolutionary forces in Mexico.75 The Court applied the common law act of state doctrine to hold that, because the revolutionary forces became the recognized Mexican government, their actions within Mexican territory could not be re-examined in U.S. courts. The Court relied on Underhill v. Hernandez, an 1897 case that set forth the act of state principle in broad terms.76 But the principle’s source was murky. Underhill had announced it as a universal proposition arising from the necessities of sovereignty. It had not expressly linked the principle to international practice, however. Oetjen and Ricaud both involved extensions of the doctrine – Oetjen because the governmental act allegedly violated international law and a multilateral treaty (the 1907 Hague Convention on the laws of war) to which the United States was a party, Ricaud because the property owner was a U.S. citizen residing in the United States at the time of seizure.77 Neither case looked to international practice to illuminate the principle’s outer boundaries; rather, the broad version of the principle was simply asserted as necessary to avoid “imperil[ing] the amicable relations between governments and vex[ing] the peace of nations.”78 73

74 75 76

77 78

One might attribute this in part to the emergence of international law positivism in the late nineteenth century. As international law methodology became more demanding, evidenced by cases such as The Paquete Habana, the Court may have found international law less attractive as a source of general law principles. 206 U.S. 46, 98 (1907). 246 U.S. 297 (1918); 246 U.S. 304 (1918). 168 U.S. 250, 252 (1897) (“Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”). Oetjen, 246 U.S. at 299–301; Ricaud, 246 U.S. at 309. Oetjen, 246 U.S. at 303. Oetjen also held that the U.S. government’s recognition of the revolutionary forces as the new government of Mexico was conclusive on the judiciary (citing nineteenth-century cases) and that it was retroactive (invoking international law principles). Id. at 302–03. Vilas v. City of Manila, 220 U.S. 385 (1911), noted supra p. 236, is arguably another example of this trend. Vilas involved application of the international law rule that cession did not alter private rights, specifically as applied to the continuity of a municipal corporation. But the Court, while referring to the “practices of nations,” described the issue as one of public law and spent the bulk of its opinion discussing the common law nature of municipal corporations in the United States. Id. at 385. Another possible example is Second Russian Ins. Co. v. Miller, 268 U.S. 552 (1925), in which the Court held that comity did not require it to reverse payments made in New York under a contract allegedly illegal under Russian law. Even in the nineteenth century, the idea of comity had a complex and obscure relationship with international law. In 1895, Justice Gray (author of The Paquete Habana),

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A similar shift took place in foreign sovereign immunity (although tracing it takes us somewhat beyond 1938 and somewhat away from direct application cases). In the early twentieth century, the Court in Berizzi Bros. Co. v. The Pesaro applied a strict view of foreign sovereign immunity with reliance on international principles.79 In two cases in the early 1940s, both interpreting a jurisdictional statute, the Court shifted course to allow foreign sovereign immunity on the request of the executive branch. Ex parte Republic of Peru directed that “courts may not so exercise their jurisdiction [in admiralty] by the seizure and detention of the property of a friendly sovereign as to embarrass the executive arm of government in conducting foreign relations.”80 Thus, “courts are required to accept and follow the executive’s determination that the vessel is immune.”81 Two years later, Republic of Mexico v. Hoffman made the converse explicit: the Court would not grant immunity where the executive branch did not request it. “It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.”82 Concurring, Justice Felix Frankfurter emphasized the foreign relations elements of the decision and expressly disapproved of The Pesaro’s firm rule.83 Thus by 1945 foreign sovereign immunity could not really be counted as a judicial application of customary international law principles (and by implication one would also doubt that its cousin, the act of state doctrine, should be so characterized).

C. Waning International Law Positivism A related development was a trend away from international law positivism in the Court’s cases. The Paquete Habana, of course, was the Court’s outstanding demonstration of

79

80 81 82 83

although denying that comity was strictly an international obligation, used a Paquete Habana-like inquiry into nations’ practices to evaluate whether reciprocity in recognition of judgments was required. Hilton v. Guyot, 159 U.S. 113, 163 (1895) (cryptically observing that comity “is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other”); see Chapter 3, 102. The Second Russian opinion first doubted that the Russian law was intended to have extraterritorial effect or, if so, that it required the funds to be repaid; but even if it did, the Court said, comity would not require enforcement because “by our own law payments made under contracts which are illegal where the parties are in pari delicto may not ordinarily be recovered.” Id. at 561–62. Similarly, in Guaranty Trust Co. of New York v. United States, 304 U.S. 126 (1938), the Court declined to apply the supposed rule that statutes of limitations did not run against foreign sovereigns; it found (after a fairly cursory investigation) no international practice in support of the rule, but also “found itself unable to discern . . . any considerations of public policy” in support of the rule. Id. at 135–36; see also Disconto Gesellschaft v. Umbriet, 208 U.S. 570 (1908) (holding that comity did not obligate Wisconsin law to favor a foreign creditor over a local creditor in insolvency). In all of these cases it is difficult to untangle the international standards from the common law reasoning. 271 U.S. 562 (1926). The Pesaro arose in admiralty and thus strictly speaking was an interpretation of the statute conveying admiralty jurisdiction rather than a direct application of international law. The Court held, with some reliance on English practice, that even ships engaged in commerce, if owned by a foreign sovereign, were immune. Id. at 576. Presumably the same rule would have applied in direct application cases, which might arise as diversity cases applying general common law (although no such cases reached the Court in the relevant period). 318 U.S. 578 (1943). Id. at 588–89. 324 U.S. 30, 35 (1945). Id. at 38–40 (Frankfurter, J., concurring). Like The Pesaro, Hoffman and Ex parte Republic of Peru were technically statutory interpretation cases, but again their approach to foreign sovereign immunity would presumably also operate in direct application cases.


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international law positivism.84 But it was a performance the Court failed consistently to reproduce. Increasingly, as the Court conflated general common law and international law, appeal to international practice lost force. The general common law, by the early twentieth century, was largely an exercise in federal court lawmaking, and had few pretensions to the contrary. Thus Kansas v. Colorado, after asserting its authority to apply international law, made no Paquete Habana-like inquiry into what the international rights of downstream nations actually were.85 The Court in subsequent interstate disputes generally adopted a similar approach.86 As noted, Oetjen and Ricaud simply announced extensions of the act of state doctrine without considering international practice,87 and Jensen and its progeny developed general maritime law with only limited regard to international practice.88 This trend is confirmed by the Court’s leading methodological discussion of the period, New Jersey v. Delaware.89 The case involved title to land under Delaware Bay, and unlike many boundary disputes it did not turn on a statute or treaty. The Court adopted the rule of thalweg (“main channel”), which had become a standard rule for international and interstate river boundaries.90 The Court’s problem was that while thalweg had been proposed by commentators as early as the eighteenth century, it was not really embraced in practice until the nineteenth. The Court admitted that the question was what rule was in force in the eighteenth century when New Jersey and Delaware gained independence, and the eighteenth-century evidence for a thalweg principle was weak at best.91 If international law really arose from the common consent of sovereigns reflected in their practices, as international law positivism insisted, the absence of consistent eighteenth-century practice should have been troublesome. The Court, per the great common law judge Benjamin Cardozo, was not deterred: [T]he capacity of the law to develop and apply a formula consonant with justice and with the political and social needs of the international legal system is not lessened by the fact that at the creation of the boundary the formula of the Thalweg had only a germinal existence. . . . International law, or the law that governs between states has at times, like the common law within states, a twilight existence during which it is hardly distinguished from morality or justice, till at length the imprimatur of a court attests its jural quality.92

“International law,” Cardozo continued, quoting a recent international arbitral decision, as well as domestic law, may not contain, and generally does not contain, express rules decisive of particular cases; but the function of jurisprudence is to resolve the conflict of opposing rights and interests by applying, in default of any specific provision of 84 85 86

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See Chapter 3, pp. 98–99. See 206 U.S. 46, 98 (1907). See cases cited supra p. 231, n. 33. The principal exceptions were Maryland v. West Virginia, 217 U.S. 1, 44 (1910), which relied heavily on international publicists (although not citations of actual practice) to establish a rule of binding acquiescence, and New Jersey v. Delaware, discussed infra pp. 239–40. See Oetjen, 264 U.S. at 303; Ricaud, 264 U.S. at 309. See S. Pac. Co. v. Jensen, 244 U.S. 205, 215–16 (1917); The Osceola, 189 U.S. 158 (1903) (limiting tort duties owed to seamen, citing American and some English common law cases); Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 380–81 (1918) (applying the Osceola rule to preempt a New York statute with little reference to non-U.S. law). 291 U.S. 361 (1934). Id. at 379–83 (exhaustively surveying international publicists). Id. at 383. Id.

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law, the corollaries of general principles. . . . This is the method of jurisprudence; it is the method by which law has gradually evolved in every country resulting in the definition and settlement of legal relations as well between states as between private individuals.93

Thus Cardozo expressly tied international law to an open-ended version of the common law of private rights. In doing so, he relied on a rising star in international law theory, Hersh Lauterpacht, who would soon become a leading critic of purely positive international law.94 Not surprisingly, on this basis Cardozo easily held that the reasonable rule of thalweg bound the disputing States, whether or not it had fully crystallized when their border had been established.

D. Customary International Law and Foreign Relations Several cases in the pre-Erie period implicated the relationship between customary international law and the different branches of the U.S. federal government, although it is unclear that any firm conclusions can be drawn from them. Given the United States’ widening international role during the relevant period, one might expect some clarification of the relationship between customary international law and the powers of the President and Congress. But as discussed earlier in this chapter, the leading jurisprudential themes of the period in fact revolved around the relationship between the federal courts and the States – the relationship that became the centerpiece of Erie. The Court’s view of the relationship between federal courts and the political branches of the federal government is less easily classified, and it seems a fair conclusion that the Court’s decisions in this area were in general not momentous. A starting point is Tucker v. Alexandroff95 in 1902, which is notable principally for the dissent. Tucker involved the question whether the United States was obliged to surrender a Russian deserter. The majority found that, although customary international law did not impose such an obligation, a treaty with Russia did so. In dissent, Justice Gray, the author of The Paquete Habana two years earlier, disagreed with the majority’s view of the treaty. Gray, in his final year on the Court, also wrote at length on the customary international law question (although he agreed in conclusion with the majority). The majority rested on a prior case, United States v. Rauscher, as well as international authorities.96 Gray instead emphasized “an uninterrupted course of acts of the Executive Branch, beginning at least a century ago,” which he thought “must be considered as conclusively establishing that . . . no international obligation exists to surrender foreign seamen who have deserted in this country.”97 Gray had famously if ambiguously written two years earlier that the Court should apply customary international law in the absence of a “controlling executive . . . act”;98 at minimum, the Tucker dissent suggested one way he thought that could be established. 93 94

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Id. at 384 n. 7. Id. at 383–84 (citing Hersh Lauterpacht, The Function of Law in the International Community (1933)); see Martii Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960, at 353–412 (2001) (discussing Lauterpacht’s writing and influence). 183 U.S. 424 (1902); see also Chapter 6, pp. 211–12. 183 U.S. at 431–32 (citing United States v. Rauscher, 199 U.S. 407 (1886)). Id. at 467–70. The Paquete Habana, 175 U.S. 677, 700 (1900). Two of the Paquete Habana dissenters, Chief Justice Melville Fuller and Justice John Marshall Harlan, joined Gray’s dissent in Tucker. Fuller’s Paquete


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Any conclusions from Gray’s dissent must be qualified by an early decision of his successor, Justice Holmes. In 1903, The Paquete Habana and related cases returned to the Court as an appeal from an award of damages against the United States. The U.S. government maintained that damages for wrongful capture should be assessed against the officers involved, not against the government. The Court, per Holmes, disagreed: [T]he United States . . . has so far adopted the acts of capture that it would be hard to say that under the circumstances of these cases it has not made those acts its own. It is not disputed that the United States might have ordered the vessels to be released. It did not do so. The libels were filed by the United States on its own behalf, praying a forfeiture to the United States. . . . The libels alleged a capture pursuant to instructions from the President. The captures were by superior force, so that there was no question that the United States was interested in the proceeds.99

The Court thus required the United States to pay damages for a violation of customary international law (although it directed a recalculation of the amounts), even though the government (meaning the executive branch) had “adopted the acts of capture.”100 Apparently, unlike prior executive branch conduct to which Gray referred in Tucker, subsequent executive branch conduct ratifying the challenged acts was not enough to command the Court’s deference.101 When the President and U.S. lawmakers acted together, however, the Court appeared to find ratification by the political branches decisive. O’Reilly de Camara v. Brooke,102 decided in 1908, arose under the federal provision, now commonly called the Alien Tort Statute, giving federal courts jurisdiction over tort claims brought by aliens for violations of treaties or the law of nations.103 The plaintiff, a Spanish citizen, claimed to have been deprived of her property in Cuba by the American military governor of Havana in the aftermath of the Spanish-American War, in violation of international law as incorporated in the 1899 treaty with Spain. By statute (the Platt Amendment of 1901) and the subsequent treaty with Cuba, “all” acts of the United States in Cuba were “ratified and validated.”104 The Court, again per Holmes, concluded: [W]e think it plain that where, as here, the jurisdiction of the case depends upon the establishment of a “tort only in violation of the law of nations, or of a treaty of the United States,” it is impossible for the courts to declare an act a tort of that kind when the Executive, Congress, and the treaty-making power all have adopted the act.105

99 100 101 102 103 104 105

Habana dissent had argued that the purported international law rule Gray found in that case was not judicially enforceable against the executive branch, on somewhat the same lines Gray adopted in Tucker, but the key distinction appeared to be the prior course of executive branch conduct. Compare id. at 717 (Fuller, C.J., dissenting). United States v. The Paquete Habana, 189 U.S. 453, 465 (1903). Id. at 465–66. This result was consistent with Gray’s holding in the original Paquete Habana case and contrary to the principal contention of the dissent. 209 U.S. 45 (1908). 1 Stat. 73, 77; see Chapter 1, p. 23. 31 Stat. 897; 33 Stat. 2249; see 209 U.S. at 49–50. 209 U.S. at 52. The lower court held the U.S. commander’s action wrongful, relying solely on the subsequent ratification to deny liability. O’Reilly de Camara v. Brooke, 142 F. 858, 860–61, 862 (S.D.N.Y. 1906).

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Although O’Reilly was principally a treaty case, presumably “adopt[tion]” of an act – though, in light of United States v. The Paquete Habana, perhaps not merely the President’s adoption – would also override a claim under customary international law. Vilas v. City of Manila, decided three years later, is arguably to the same effect. The question was whether the United States had abolished Philippine municipal governments when it acquired the Philippines after the Spanish-American War. The Court found that international law favored continuation and noted that it would not presume the United States had disregarded that approach “in light of the practice of nations.” But it added that the United States (it did not say what branch) could have abolished the Philippine municipalities if it had wished.106 Two years after Vilas, MacLeod v. United States, while more ambiguous, arguably suggested greater force for customary international law. The question was whether a U.S. customs officer had wrongly collected a tariff in a part of the Philippines not yet under U.S. occupation. The Court found that under customary international law the U.S. tariff was not appropriately collected. It further emphasized that it recognized the “authority of a conquering power . . . to regulate trade with the enemy” but such authority “is not without limitation.” The local officer was “bound by the order of the President as commander-in-chief, which in this case had limited tariff collectors to ports and places occupied by the United States.” And further, “such authority [apparently, of the conquering power, although possibly of the local officer] is subject to the laws and usages of war, and, we may add, to such rules as a sanctioned by established principles of international law.” But in any event, the Court made clear it was not actually deciding anything contrary to the political branches, as the President in directing operations in the Philippines had “manifest purpose scrupulously to observe international law.”107 It is difficult to find definite conclusions in these cases, and the Court said little more on the subject until United States v. Curtiss-Wright Export Co. in 1936.108 Curtiss-Wright, a mysterious and controversial decision in many respects, is best known for its dubious twin declarations that foreign affairs powers accrue to the federal government outside of the Constitution and that national foreign affairs powers primarily rest with the President.109 But while invoking the customary international law conception of sovereignty as an expansive source of federal power, Curtiss-Wright arguably also adopted customary international law as a limitation. “[T]he operations of the nation” in foreign territory, Justice George Sutherland wrote for the Court, are not governed by the Constitution – “unless in respect of our own citizens” – but rather “by treaties, international understandings and compacts, and the principles of international law.”110 Thus Sutherland can be seen as proposing a tradeoff: the President’s foreign affairs power would not be constrained by the Constitution, but it would be constrained by international law. Whether Sutherland intended this formulation to declare a judicially cognizable limit on the President 106 107

108 109

110

220 U.S. 385 (1911). 229 U.S. 416, 432 (1913). MacLeod further held that an act of Congress ratifying executive actions taken in the Philippines did not require a different result, because the Court would not construe the generally worded act to ratify actions violating customary international law. See Chapter 8, pp. 257–58, n. 6. 299 U.S. 304 (1936). See Michael D. Ramsey, The Myth of Extraconstitutional Foreign Affairs Power, 42 Wm. & Mary L. Rev. 379 (2000) (describing and criticizing these aspects of the case). For additional discussion of CurtissWright, see Chapter 8, pp. 279–83. 299 U.S. at 318.


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remains obscure, and Curtiss-Wright has become (perhaps paradoxically) a standard citation for effectively unconstrained executive foreign affairs power. One could marshal these cases into a conclusion that Congress could violate customary international law while the President could not, but that project risks over-reading a scattered and under-theorized string of decisions that do not seem firmly grounded in common core principles. And in any event such a view would be called into question by the duo of foreign sovereign immunity cases with which the period closed. As noted, these cases (Ex parte Republic of Peru and Republic of Mexico v. Hoffman) acknowledged a decisive role for the executive branch in foreign sovereign immunity decisions on the strength of the President’s paramount role in foreign relations. The cases did not suggest that the President was bound by rules of customary international law in making immunity decisions; indeed their repeated emphasis on executive discretion indicated the contrary. Perhaps the most that can be said for the period as a whole, then, is that the Court appeared to assume Congress could violate customary international law if it chose, and it appeared to assume the President would not (whether or not the President could), but it did not develop a theory in support.

II. 1938–1945: The Erie Revolution and Its Meaning(s) for Customary International Law In 1938 the Supreme Court declared a constitutional and jurisprudential revolution in three sentences. Justice Brandeis’s opinion for the Court in Erie Railroad Co. v. Tompkins overruled Swift and flatly announced the nonexistence of general common law: Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law.111

In support, Brandeis adopted and quoted at length Holmes’s view that general common law as applied in Swift rested on the “fallacy” of a “transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute.” Rather, again quoting Holmes, he wrote: Law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State. . . . The authority and only authority is the State, and if that be so, the voice adopted by the State as its own (whether it be of its Legislature or of its Supreme Court) should utter the last word.112 111

112

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Erie’s story has been told many times. For a leading account of its historical context, see Purcell, supra note 4, at 95–191. For legal commentary, see Akhil Reed Amar, Law Story, 102 Harv. L. Rev. 688, 694–702 (1989); John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693 (1974); William R. Casto, The Erie Doctrine and the Structure of Constitutional Revolutions, 62 Tul. L. Rev. 907 (1988); Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 Va. L. Rev. 673 (1998). 304 U.S. at 78 (quoting Black & White Taxicab Co., 276 U.S. at 532–36 (Holmes, J., dissenting)). But see Goldsmith & Walt, supra note 111 (arguing that Erie was not principally driven by Holmes’s ideas of domestic law positivism).

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At a stroke, Brandeis and his colleagues undid more than a century of jurisprudence and eliminated what had been an important power of federal courts – to formulate principles of common law independent of state courts. In Brandeis’s new world, federal courts in common law cases would merely search for what the relevant state court had said about the matter. This massive shift of power was no accident. As recounted, the Swift system – especially as expanded by late-nineteenth and early-twentieth-century decisions – came under increasing attack as an illegitimate usurpation by federal courts. Part of the opposition was theoretical, led by Justice Holmes (until his retirement in 1932): to Holmes, the whole idea of general common law outside the purview of any sovereign authority was simply a jurisprudential mistake. The opposition was also political, arising from a sense that large multistate corporations were taking advantage of the Swift system to secure more favorable rulings in federal court than they could obtain in state court and that federal courts were frustrating reform efforts by the state judiciaries, particularly in areas such as torts and insurance.113 None of this had much to do with international law. Although Swift itself was in a sense an international law case (arising from the lex mercatoria), most of the Swift-ian controversies of the early twentieth century were wholly domestic. Indeed, it was the Court’s expansion of the Swift doctrine into increasingly local matters such as torts that stoked much of the opposition. International law cases stood, for the most part, out of the spotlight. An exception was Jensen and its progeny, applying general maritime law at the expense of state law.114 However, Jensen was not a direct consequence of Swift. Unlike Swift, it overturned a state statute; also unlike Swift, it claimed a constitutional mandate of sorts in the clause of Article III conveying admiralty and maritime jurisdiction. Although Holmes’s dissent in Jensen linked the case to his broader assault on Swift, in fact (as we will see) it was not clear where Erie left Jensen. Erie nonetheless had enormous consequences for the direct application of customary international law. Up to 1938, customary international law had been described as part of general common law and had been applied by federal and state courts in the manner of general common law.115 Erie conceptually abolished general common law. Where did that leave customary international law? The answer was far from clear. There were various possibilities, explored in more detail later in this chapter. First and most simply, one might say that federal courts could not apply customary international law directly unless federal law or the relevant state law incorporated it – that is, absent direction from a federal statute or treaty, it would suffer a fate akin to common law as a whole, becoming a creature of the law of the particular State in which the controversy arose. Second, and entirely to the contrary,

113 114 115

Brandeis also referred, somewhat confusingly, to the fact that Congress did not have constitutional power to declare the common law of a State. While true, that point seemed a non sequitur. The question was the Court’s authority, not Congress’s, and it seems unlikely that Brandeis thought Erie applied only to cases outside Congress’s enumerated powers. In particular, Swift itself involved the law merchant, an aspect of interstate commerce, and thus presumably came within Congress’s regulatory power, and yet Brandeis in Erie made clear that he regarded Swift as illegitimate. See especially Purcell, supra note 4 at 12–191; see also Goldsmith & Walt, supra note 111, at 687–90. See supra p. 231. E.g., Oliver Am. Trading Co. v. Mexico, 264 U.S. 440. 442–43 (1924); Wulfsohn v. Russian Soviet Federated Socialist Republic, 266 U.S. 580, 580 (1924).


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one might say that customary international law, being obviously not dependent on state law for its existence, instead should be treated as federal law. Rather than diminishing customary international law (as the first option would), this approach would significantly exalt it, because it would suggest that customary international law (like other types of federal law) would override conflicting state law and bind state courts. Thus this view would do for all of customary international law what Jensen did for general maritime law. Third, one might seek some sort of middle ground that tried to preserve the independent yet modest role customary international law played in federal courts in the nineteenth century. But the third alternative faced significant hurdles because Erie so thoroughly reconceptualized the nature of law and the relationship between federal and state courts. Indeed, the central difficulty was (and remains) that none of the options was wholly satisfactory.116

A. Is Customary International Law State Law? Erie, one might say, appeared to list the definitive categories of federal law: the Constitution and federal statutes (and, one assumes, federal treaties, although Brandeis did not say so). That list presumably flows from the Constitution’s Article VI, establishing these categories – and no others – as “supreme Law of the Land.” By default, everything else was state law. Erie did not appear to recognize any other categories. Of course, state law might – in many cases likely did – incorporate customary international law; state law, as we have seen, had done so since before the Constitution.117 If it did, federal courts would be obliged to apply it in the manner that the relevant state courts would. Federal courts would not (contra Swift), however, be able to reach independent judgments as to its content. The State’s view of international law’s content would be binding because it would really be state law. Customary international law could of course also be incorporated by a federal statute or treaty, in which case it would become binding on the States and subject to binding interpretation by federal courts under Article VI of the Constitution. But it would always be applied derivatively, dependent on some act by the States or the political branches of the federal government to incorporate it into domestic law.118 Several points suggest that this might have been the Court’s intent. First, Swift itself was an international law case, but Erie made clear that it was Swift’s own holding (not merely its late-nineteenth/early-twentieth-century extensions) that Erie overturned.119 At minimum, the lex mercatoria, to the extent it still existed, seemed to fall within Erie’s declaration. Further, in Klaxon Co. v. Stentor Electric Manufacturing Co. in 1941, a crucial early application of Erie, the Court required federal courts in diversity cases to follow the conflict of laws rules of the relevant State.120 In the nineteenth century, conflict of laws was a doctrine of private international law, applied as general common 116 117 118

119 120

For a comprehensive account of the debates over Erie’s meaning for customary international law, see Ernest A. Young, Sorting out the Debate over Customary International Law, 42 Va. J. Int’l L. 365 (2002). See Chapter 1, pp. 10–11 (discussing the de Longchamps case). For an outline and defense of this view, see Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). See also Curtis A. Bradley & Jack L. Goldsmith, The Incorporation of International Law into Federal Law: A Response, 111 Harv. L. Rev. 2260 (1998); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665 (1986). See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938). 313 U.S. 487, 496–97 (1941).

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law in the manner of Swift;121 Klaxon encompassed it, like the lex mercatoria, within the Erie revolution. Taken with Erie’s direct and unqualified statements, one might readily say that all of customary international law suffered the same fate. This account of Erie has the value of simplicity, but in other respects it encounters substantial difficulties. First, it would substantially downgrade customary international law’s domestic status. Before Erie, customary international law did not depend on domestic political actors to incorporate it. True, at least in the nineteenth and early twentieth centuries, it did not independently convey federal jurisdiction.122 But where federal courts had jurisdiction on other grounds (such as diversity, rights of ambassadors, or admiralty and maritime disputes) and where there was no constitutionally superior source of law, federal courts could apply it. And because international disputes would often fall within one of these jurisdictional categories, federal courts had wide latitude to supervise state court decisions on international law matters. In the literal reading of Erie, that power would be lost. It was not clear that Erie intended this jurisprudential downgrade. As the great international law scholar Philip Jessup famously said shortly afterwards, “Mr. Justice Brandeis was surely not thinking of international law” in deciding Erie, a purely domestic case.123 To one small extent, this was manifestly true: in listing the sources of federal law, Brandeis (surely inadvertently) omitted treaties.124 Customary international law also likely was not at the forefront of his thinking. As discussed earlier in this chapter, the direct application of customary international law had played a small and diminishing role in the Court’s docket in the years leading up to Erie. Aside from interstate disputes and general maritime cases, which had evolved into their own distinct categories, the Court had not decided a pure direct-application customary international law case for more than twenty years – since Berg in 1917, a year after Brandeis first joined the Court.125 Moreover, Jensen excepted, the leading critiques of Swift had wholly domestic law roots: principally, the idea that for both federalism and separation of powers reasons federal courts lacked constitutional power to make law governing matters within the traditional areas of state authority. And further, customary international law – although treated as part of general common law in the nineteenth century – was less subject (one might say not at all subject) to Holmes’s positivist critique of general common law. Unlike general common law, customary international law (at least, turn-of-the-century, Paquete Habana-style customary international law) did come from sovereign authority, or rather from the common consent of multiple sovereigns.126 As Jessup pointed out too, treating customary international law as dependent on state law incorporation might have serious practical consequences. If state law did not adopt it, federal courts would have no choice but to follow suit, even in matters such as foreign sovereign immunity and the act of state doctrine that might have serious international 121 122 123 124 125 126

E.g., Ennis v. Smith, 55 U.S. 400, 422–26 (1853); see Chapter 1, p. 29; see also Hilton v. Guyot, 159 U.S. 113. 163 (1895) (describing conflict of laws as part of international law). See Chapter 3, pp. 117–18; Chapter 1, pp. 31–32. Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int’l L. 740, 743 (1939). 304 U.S. at 78 (listing only the Constitution and federal statutes). See supra 235. On the distinctions between Holmes’s domestic law positivism and The Paquete Habana’s international law positivism, see supra p. 229, n. 19.


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consequences. Indeed, one might say, a central goal of the Constitution had been to redress the problems of state violations of customary international law.127 The perversely literal reading of Erie would not only put States back in the business of deciding whether to follow customary international law but also obligate federal courts to endorse their violations.128 It was also not clear how the literal reading would accommodate cases like The Paquete Habana. As described in earlier chapters, The Paquete Habana’s declaration that “international law is part of our law,”129 in the context of prize and admiralty cases, stated a commonplace that dated to the Court’s earliest years.130 Similarly, Section 9 of the 1789 Judiciary Act and early commentary seemed to assume that federal courts could apply customary international law in appropriate tort cases.131 These cases fit poorly with the literal reading of Erie, because in many of them (including The Paquete Habana) there simply was no state substantive law (or federal constitutional or statutory law) to apply. If, after Erie, literally all law had to be federal or state law, would these international cases lie beyond federal court adjudication? That result again would substantially demote customary international law compared to its historical status and would appear contrary to the Constitution’s text and original understanding, which seemed to embrace such cases.132 But if federal courts were to continue to decide such cases, they would need some form of law, neither federal nor state, to do so – and admitting that possibility would undermine the simplicity of the literal reading. Most importantly, the literal reading needed modifications to deal with other contemporaneous developments. On the same day Brandeis announced Erie, he delivered the Court’s opinion in Hinderlider v. La Plata River & Cherry Creek Ditch Co.,133 which showed that matters were not as simple as a quick reading of Erie might suggest. 127

See Chapter 1, pp. 10–12. See Jessup, supra note 123, at 741–43. As Jessup concluded, “The several states of the Union are entities unknown to international law. It would be as unsound as it would be unwise to make our state courts our ultimate authority for pronouncing the rules of international law.” Id. at 743; see also Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998) (repeating and expanding these criticisms). But see Stephan, supra note 61, at 1044–48 (arguing as a policy matter that local opportunism in international law implementation at the state level is not as great a threat as often suggested). 129 175 U.S. 677, 700 (1900). 130 Chapter 1, pp. 22–25. 131 See id., p. 23. 132 See Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 356–60 (2007) (arguing that the text and original understanding of Article III, Section 1’s grant of “judicial Power” to the federal courts likely included the power to decide at least some cases on the basis of international law). In particular, it is difficult otherwise to understand Article III, Section 2’s grant of admiralty and maritime jurisdiction and jurisdiction over cases affecting ambassadors, [M]any “cases of admiralty and maritime Jurisdiction” would occur on the high seas beyond state law’s normal reach, and so (in the absence of federal law) would depend on the law of nations. If federal courts could not use the law of nations, this jurisdictional grant would be odd, because federal courts would often lack rules of decision, although having jurisdiction. Second, “Cases affecting ambassadors” likely assumes law-of-nations authority. As the de Longchamps incident shows, the problem here was that state laws might not afford ambassadors enough substantive protection. Giving federal courts jurisdiction did not provide much of a solution if federal courts still depended on state laws for rules of decision. . . . It is likely that [the framers] thought the Court, when deciding such cases, would (in the absence of statutory law) use the law of nations, which had extensive protections for ambassadors. Id. at 358. 133 304 U.S. 92 (1938). 128

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Hinderlider was something of a replay of Kansas v. Colorado – an interstate water rights dispute, this time involving Colorado and a different downstream neighbor, New Mexico. Colorado and New Mexico entered into an interstate compact, approved by Congress under Article I, Section 10, of the Constitution, to apportion water rights between them. When Colorado tried to implement the compact by reserving some water for New Mexico, La Plata claimed preexisting rights under Colorado state law. The Colorado Supreme Court agreed, rejecting the compact-based defense of Hinderlider, the state official in charge of administering the compact. Reviewing the state court decision, Brandeis had to tread carefully in light of Erie. He might have said that the compact, approved by Congress, constituted preemptive federal law. Brandeis avoided that easy solution, which would not have covered other cases where no compact existed. Under Kansas v. Colorado, the Court could apply “interstate common law,” including customary international law, to resolve interstate disputes.134 But Kansas v. Colorado, decided under the Swift system, was suspect after Erie. General common law no longer existed. Unless Brandeis was prepared to find the Court unable to resolve many interstate disputes – which among other things would have cast some practical doubt on Erie from its outset – he needed to find a source of federal law. Rising to the occasion, Brandeis found his source in “federal common law.” Interstate disputes, he said, necessarily required a superior law to resolve them. By placing dispute resolution in the Supreme Court, the Constitution’s Article III, Section 2, envisioned the Court as having power to create such a superior law.135 Thus Erie and Kansas v. Colorado could be reconciled, but on Brandeis’s terms. Interstate disputes were an unusual category in which the Constitution itself authorized preemptive federal judicial lawmaking, but the broader principle (that only the Constitution and federal statutes were supreme law) remained. Federal common law, on this account, arose from the Constitution. Hinderlider, among other things, potentially salvaged Jensen from the overthrow of Swift. Like Kansas v. Colorado, Jensen arguably rested on a constitutional implication – in the Jensen Court’s view, Article III’s grant of admiralty and maritime jurisdiction constitutionally directed federal courts to apply general maritime law and excluded States from interfering. To be sure, it was tenuous reasoning, because the grant of admiralty jurisdiction did not obviously imply preemptive lawmaking power (as Justice Pitney had argued in dissent), and the structural necessities for it were much weaker than in Hinderlider. Brandeis himself presumably had no desire to preserve Jensen, in which he had dissented. But Hinderlider opened the door to arguments that federal common law governed particular classes of subject matter, Erie notwithstanding, as a result of the Constitution’s allocation of federal power. And in subsequent cases, the Court did preserve at least a limited version of Jensen on this ground.136 If Kansas v. Colorado and Jensen could be described as federal common law arising from the Constitution, and thus survive Erie, the simple version of Erie becomes less tenable. Perhaps other areas of law with particular federal interests could be reborn as federal common law. Perhaps some of these would – like interstate disputes and 134 135 136

See supra pp. 230–31. 304 U.S. at 110 (finding the dispute to be “a question of ‘federal common law’ upon which neither the statutes nor the decisions of either State can be conclusive.”). See Young, supra note 34, at 293–94; Davis v. Dep’t of Labor & Indus., 317 U.S. 249, 255–56 (1942) (declining to overrule Jensen); Standard Dredging Corp. v. Murphy, 319 U.S. 306, 309 (1943) (finding Jensen to survive although “severely limited”).


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general maritime cases – involve international law. And indeed, perhaps all of customary international law could be reconceived as Hinderlider’s federal common law. The next section turns to that possibility.

B. Is Customary International Law Federal Common Law? The foregoing discussion suggests an alternative interpretation of Erie. Expanding on Hinderlider, one might say that all of customary international law is, in the wake of Erie, federal common law.137 Hinderlider expressly acknowledged that the Constitution might empower federal courts to create federal common law in areas of particular federal interest. Application of international law is plainly an area of particular federal interest, because state violations of international law affect national foreign relations – a point emphasized at the 1787 Constitutional Convention.138 The practical benefits of such an approach would be significant, because federal courts could intervene against dangerous state violations without awaiting a congressional mandate. And the result would be consistent with the criticism of Swift and with Erie’s response. Opposition to Swift centered on federal courts’ encroachment on matters local to the States; it had nothing to do with the States’ right to act in foreign affairs, a right of debatable constitutional and practical validity. Some decisions around the time of Erie suggested such a possibility. In United States v. Belmont in 1937,139 the Court (per Justice Sutherland) took an extraordinarily restrictive view of the States’ role in international affairs. The actual outcome in Belmont turned on the decision to treat an international executive agreement (that is, an international agreement entered into by the President without the approval of Congress or the Senate) as preemptive in the manner of an Article II treaty.140 But in the course of the opinion Sutherland’s rhetoric left little doubt that he thought States had no business interfering with federal foreign policy decisions.141 And Sutherland’s opinion a year earlier in CurtissWright depended on a theory of foreign affairs power that, taken to its logical extent, would preclude States from engaging in foreign-policy-related activities.142 Sutherland’s rhetoric and history have since been sharply questioned, but his result in Belmont was reaffirmed in United States v. Pink in 1942, after Sutherland left the Court, with another round of broad commentary about the need for federal foreign policy interests to prevail over state interference.143 Further, in Guaranty Trust Co. of New York v. United States, decided (like Hinderlider) the same day as Erie, the Court applied New York’s statute of limitations against a claim 137

138 139 140 141 142 143

For arguments in this direction, see Jessup, supra note 123, at 741–43; Koh, supra note 128; Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie, 66 Fordham L. Rev. 393 (1997). See Chapter 1, pp. 11–12. 301 U.S. 324 (1937). Id. at 330. For discussion and sharp criticism of Belmont, see Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. Rev. 133 (1998). See also Chapter 6, pp. 218–19. 301 U.S. at 331–32. 299 U.S. 304 (1936); see Ramsey, supra note 132, at 13–48 (discussing Curtiss-Wright’s implications for States’ foreign affairs activities). 315 U.S. 203, 229–30 (1942). Among other things, Pink and Belmont indicated that the Court did not necessarily think Article VI lists all sources of preemptive law (because Article VI does not list executive agreements).

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of the Russian government, rejecting an argument that, under international law and/or comity, limitations periods did not run against foreign sovereigns.144 The Court (per Harlan Fiske Stone, who joined Erie’s majority) argued first that such a rule could not be found in comity or international law and second that “public policy” did not support applying such a rule.145 Under Erie, the only question should have been whether the New York courts would apply the limitations period – so Stone must have thought that Erie for some reason did not apply. One explanation is that he thought that the supposed bar against limitations periods, if established, would have been an element of preemptive federal common law.146 Put together with Hinderlider, Pink, Belmont and Curtiss-Wright, one might argue that the Court had in mind a federal common law displacing States in foreign affairs cases (including customary international law cases). But closer examination reveals difficulties with this interpretation as well. First, Kansas v. Colorado (especially as reinterpreted by Hinderlider) and Jensen relied on particular jurisdictional grants to federal courts in Article III – interstate disputes and admiralty and maritime cases. These grants were said to contain lawmaking authority, thus elevating their subjects to the status of federal common law. On a similar theory, some other specific jurisdictional grants might contain authority to apply customary international law as federal common law (such as jurisdiction over cases affecting ambassadors), but the Constitution has no express grant of jurisdiction over international law cases generally.147 Moreover, Jensen and (to some extent) Kansas v. Colorado themselves involved application of international law. If customary international law generally could be applied as federal common law, those cases would not have needed to appeal to specific jurisdictional grants. Further, and more problematically, the broad interpretation of Erie would remake the relationship between customary international law and state law. Before Erie, it was dubious that customary international law as a general matter would preempt a state statute. The strong negative implication of the Constitution’s Article VI – listing treaties but not customary international law as supreme law – was that the latter did not displace state law of its own force.148 That also seemed to be the conclusion of several Justices in Ware v. Hylton in 1796 (although, as noted, alternative interpretations have been offered).149 In Swift, Justice Story expressly limited his conclusion to state common law decisions, and his logic in explaining the effect of Section 34 of the Judiciary Act likewise assumed that state statutes would bind federal courts (at least against the lex mercatoria 144 145 146

147

148 149

304 U.S. 126, 135–36 (1938). Id. An alternate reading would note that Guaranty Trust arose from the same set of facts as Belmont and was governed by the same executive agreement, which Belmont held preemptive of New York’s public policy against extraterritorial confiscations. See Guaranty Trust, 304 U.S. at 135–36; Belmont, 301 U.S. at 330. Thus Stone had to resolve a conflict between the state statute and the executive agreement, and the decision only held that the executive agreement did not preempt the limitations period. This may be a superior explanation of the case, although it is not how Stone framed it. Arguably Article III, Section 2’s grant of jurisdiction over cases “arising under the laws of the United States” includes cases arising under customary international law. See William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002). But that position is contested as an original matter, see Curtis A. Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587 (2002), and the Court apparently rejected it in the nineteenth century. See Chapter 1, pp. 31–32; Chapter 3, pp. 116–18. See Ramsey, supra note 132, at 346–55. Id.; see Chapter 1, p. 30.


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portions of customary international law at issue in Swift).150 In any event, it does not appear that the pre-Erie Court ever expressly overturned a state statute for violating customary international law (except in maritime cases and interstate disputes).151 Further, under the Swift system, a federal court’s interpretation of customary international law, although not bound by prior state court common law decisions, would not appear to bind future state common law decisions on the same point.152 On the broad reading of Erie, both situations would be resolved against the States. If, as Professor Jessup said, Brandeis was not thinking of international law in writing Erie, it seems troublesome to attribute such a revolution in customary international law’s status to his decision.

C. Is There a Middle Ground? If both the broad and narrow views of Erie and customary international law are problematic, we may consider some intermediate readings. Several are available, but it is not clear that any is entirely satisfactory. First, one might say that some, but not all, international law doctrines form part of federal common law. This approach seems consistent with Hinderlider and Jensen, which appear more readily to support partial rather than complete incorporation of international law into federal law. Like Hinderlider and Jensen, this approach would rest not so much on a doctrine’s status as international law, but on its relationship to the necessities of the federal system.153 Thus, for example, the act of state doctrine might be incorporated into federal common law after Erie on the basis of its relationship to the constitutional separation of powers, whether or not it was truly a doctrine of international law.154 In contrast, States’ internal treatment of aliens (as in Ware v. Hylton) or of their own citizens might not be subject to a preemptive international law standard (even where an international standard arguably existed) as a result of the strong local interest. Similarly, optional features of the private international legal system, such as the lex mercatoria, would be open to state modification. This approach responds to the three major criticisms of the literal reading of Erie: that it does not account for Hinderlider, that it does not account for The Paquete Habana, and that it allows States too much latitude to develop conflicting and dangerous treatments of international law. It also does a better job of linking itself to the Constitution’s text and structure than does the general incorporation of customary international law into federal law. 150 151

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See supra pp. 227–28. See Chapter 1, p. 31; Chapter 3, pp. 117–20. As Chapter 1 notes, Watson v. Tarpley, 59 U.S. 517 (1856), refused to enforce a state statute regulating negotiable instruments, although the Court indicated that the statute would remain valid in state court. Late-nineteenth-century federal court practice did not follow Watson, however, and only four years before Erie the Court unanimously reaffirmed that state statutes regulating interstate commercial law bound federal courts. See supra pp. 233–34 (discussing Burns Mortg. Co. v. Fried, 292 U.S. 487 (1934)). See Pa. R.R. Co. v. Hughes, 191 U.S. 477, 486 (1903) (finding that U.S. Supreme Court decision on domestic general common law did not bind future state courts); N.Y. Life Ins. Co. v. Hendren, 92 U.S. 286, 287–88 (1876) (finding that customary international law operated as general common law rather than federal law). See Clark, supra note 13, at 1272–75; Anthony J. Bellia & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009). As in fact occurred in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964). See Chapter 11, pp. 359–63.

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This middle-ground reading, while appealing, suffers from at least two difficulties. As an initial matter, it is hard to develop criteria for when a rule should be federalized. The rule actually suggested by Jensen (a link to a particular grant of Article III jurisdiction) seems both narrow and, for the reasons set forth in Pitney’s dissent, dubious. A broader rule, potentially derivable from Hinderlider, that any substantial federal interest warrants federalizing, seems too broad. It is not clear where a middle ground might rest, other than on judicial intuition.155 Further, there is little historical basis for any such rule. Jensen itself was a contested decision that did not rest firmly on prior practice, and Holmes and Brandeis regarded it as wrongly decided. Aside from interstate disputes (which are arguably sui generis), pre-Erie history offers little support for preemption based on federal interests. In particular, the idea of broad foreign affairs preemption appears to lack firm historical roots.156 Both textually and historically, this approach encounters many of the same problems as the across-the-board incorporation of customary international law into federal law: it does not seem to have been widely contemplated before Erie, and there is little reason to think that Erie itself contains the idea. And without history behind it, it may be too much to coax from Hinderlider. Quite possibly, Hinderlider meant only to endorse the federal common law of interstate disputes, which Holmes and Brandeis had already accepted. A second middle-ground reading might be that federal courts could continue to apply customary international law in cases where international interests predominate. This analysis would depend less on the Constitution and more on conflict of laws principles. It would conceive of state law and international law as competing legal rules and select the one with the closest connection to the dispute. Thus in matters of predominantly local interest, international law would not be applied, but matters with strong foreign affairs implications (such as, for example, questions of foreign sovereign immunity) would be decided by international law.157 This approach would avoid much of the practical criticism of reading Erie literally, while avoiding the extensive interference with state law threatened by total incorporation of international law as federal law. Cast explicitly as a doctrinal outgrowth of Erie, it would be less subject to historical criticism (because 155

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For a well-argued attempt to outline a test, see Clark, supra note 13, at 1272–1376. Professor Clark argues that federal common law should meet two criteria: (1) that the area is beyond the legislative powers of the States and (2) that the federal common lawmaking is necessary to implement important aspects of constitutional structure. Id. at 1272–75. Applied to foreign affairs, Clark argues that incorporation of some, but not all, rules of customary international law into federal common law is appropriate. Id. at 1292–1311 (specifically addressing foreign sovereign immunity and the act of state doctrine); Bellia & Clark, supra note 153 (arguing for a “federal common law of nations” that uses international law doctrines to the extent they protect the foreign policymaking functions of the President and Congress). The application of this test to produce a broad federal common law of foreign affairs, however, depends on sweeping and probably unsustainable claims about the extent to which States are constitutionally precluded from foreign-affairs-related matters. See Michael D. Ramsey, The Power of the States in Foreign Affairs: The Original Understanding of Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997). But see Bellia & Clark, supra note 153. It is true that Curtiss-Wright, decided only two years before Erie, contains reasoning suggestive of broad federal exclusivity in foreign affairs. See supra p. 242; see also Clark, supra note 13, at 1302 (relying on Curtiss-Wright for this proposition). But this part of Curtiss-Wright has been heavily criticized on historical grounds, see Ramsey, supra note 132, and the actual result in Curtiss-Wright had nothing to do with federal exclusivity. See A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 Yale J. Int’l L. 1 (1995); Young, supra note 116, at 468–83.


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it need not claim pre-Erie historical grounding), yet it would make some headway in preserving the pre-Erie system as applied to international cases. Despite considerable practical appeal, this approach also has its difficulties. To begin, it is contrary to Klaxon, which required federal courts to use the forum State’s conflict of laws rules. The conflict of laws approach, in contrast, would in effect create a federal common law of conflict of laws, which would preempt state conflict of laws rules in international law cases. More fundamentally, to the extent it would allow customary international law to displace state statutes, it suffers from the difficulties noted earlier; if it only allowed customary international law to displace state common law, it would be difficult to reconcile with Erie’s conclusion that there is no constitutional or jurisprudential distinction between state statutes and state common law. A third middle-ground reading would say that Erie allows federal courts to use customary international law only where it does not conflict with a state law applicable on its own terms.158 This would in a sense be a modified conflict of laws approach, because it would operate only where state law did not purport to apply. In such a situation, federal courts would retain the option of applying customary international law even if the State would not (assuming the State had not expressly rejected it).159 Further, federal courts might retain their authority to disagree with state courts on matters of customary international law where the state court (like the state courts in Swift) thought they were applying international law rather than state law. This approach seems most closely to approximate customary international law’s status before Erie (although it would require some modification of Klaxon). On this reading, the only change Erie made in the application of customary international law was to say that state common law – to the extent the state courts understood themselves as applying state law – would have the same effect as a state statute, regardless of whether the state common law was “local” in the sense of Swift. Wider changes would not be needed because customary international law, unlike general common law, is a system of law outside of, and derivable independently from, both federal and state law. Among other things, that conclusion would preserve federal courts’ ability to apply customary international law in admiralty cases like The Paquete Habana and overseas tort cases like O’Reilly de Camara.160 This view is open to many of the same objections as the literal reading of Erie, which it resembles: it would diminish the scope for customary international law in federal courts, and it would allow deliberate state violations or misinterpretations of customary international law to be unredressed. It also assumes that Brandeis’s intent in Erie, had he thought about it, would have been to leave the status of international law as little changed as possible. This last assumption itself may not be justified. Professor Jessup may have been wrong: perhaps Brandeis was thinking of international law. Brandeis joined Holmes’s dissents 158

159 160

See Michael D. Ramsey, International Law as Non-preemptive Federal Law, 42 Va. J. Int’l L. 555 (2002) (suggesting this approach). Other intermediate approaches might be available, including that certain jurisdictional statutes and constitutional provisions but not others authorize federal courts to apply customary international law as federal common law. See William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System after Sosa v. Alvarez-Machain, 12 Tulsa J. Comp. & Int’l L. 87 (2004). One might think of this as a “reverse-preemption” approach: customary international law would be available as a rule of decision unless state law (or federal law) expressly displaced it. See supra pp. 241–42 (discussing O’Reilly de Camara).

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(including Jensen) that repeatedly and forcefully declared that there was no general law (including general maritime law) aside from state law. Holmes wrote in a different context – rejecting an attempt to apply general maritime law against the U.S. government – that there was no “mystic over-law to which even the United States must bow.” This passage is worth quoting at length: In deciding this question we must realize that however ancient may be the traditions of maritime law, however diverse the sources from which it has been drawn, it derives its whole and only power in this country from its having been accepted and adopted by the United States. There is no mystic over-law to which even the United States must bow. When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules.161

One could read these comments as rejecting customary international law as a binding concept, at least for domestic courts, absent incorporation by some domestic lawmaker.162 Perhaps, then, Brandeis – like Holmes – was thinking of customary international law in a theoretical sense, but had not considered the practical implications of where these thoughts might lead him. In sum, it may be that none of the readings of Erie’s effect on customary international law in federal courts is wholly satisfactory. In any event, it seems clear that none of them was wholly embraced, nor wholly rejected, in Erie’s time.

D. Aftermath, 1938–45 The final years of our period can be easily recounted and provide only hints of future directions. Despite enormous upheaval in international affairs, the period brought the Court few cases implicating the direct application of customary international law. Three in particular stand out. The first, discussed earlier in this chapter, is Klaxon Co. v. Stentor Electric Manufacturing Co., in which the Court declined to make conflict of laws principles a matter of federal common law, and instead left them to the States.163 Of course, by Klaxon’s time conflict of laws principles had been almost entirely “domesticated” – that is, made ultimately subject to constitutional principles rather than international principles.164 But the Court was also in the process of relaxing the constitutional restraints it had placed on state conflict of laws principles, so the effect of Klaxon was largely to leave the States unsupervised in this area (an area, it is worth noting, that in many legal systems makes up 161

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163 164

The Western Maid, 257 U.S. 419, 432 (1922). Some commentators have noted a link between Holmes’s positivism and that of the British legal philosopher John Austin. See, e.g., Goldsmith & Walt, supra note 111, at 678. Austin, of course, famously contested international law’s status as law. See John Austin, The Province of Jurisprudence Determined 18 (Wilfrid E. Rumble ed., 1995). On the other hand, Holmes wrote for the Court without any apparent discomfort in United States v. The Paquete Habana, which upheld the U.S. government’s liability for wrongful seizures under customary international law. See supra p. 241. Federal courts might themselves possess the power to incorporate it. See The John G. Stevens, 170 U.S. 113, 126–27 (1898) (“the general maritime law is in force in this country, or in any other, so far only as administered in its courts or adopted by its own laws and usages”). 313 U.S. 487, 496–97 (1941); see supra pp. 245–46. See supra pp. 235–36.


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the core of what is called “private international law”). Although it is not clear the Court was thinking of Klaxon’s international implications,165 Klaxon could be read to suggest a degree of comfort with States controlling matters of at least some international import. The second case, Skiriotes v. Florida,166 contains substantial ambiguity. The question was whether Florida had power to prohibit sponge diving off its coast by its own citizens, but in international waters. The defendant claimed, among other things, that international law limited the State’s authority. The Court found no such limit in customary international law, which (it had already said167 ) allowed nations to regulate their citizens abroad. Citing Holmes’s opinion in The Hamilton, it likewise found no constitutional limit on Florida doing so. Along the way, however, the Court observed that “[i]nternational law is part of our law and as such is the law of all states of the Union,” citing The Paquete Habana, “but it is a part of our law for the application of its own principles, and these are concerned with international rights and duties and not with domestic rights and duties.”168 If nothing else, Skiriotes suggests that the Court was not thinking clearly about Erie’s relationship to customary international law. First, The Paquete Habana had not said that customary international law was “the law of all states of the Union”: that case had not raised any question of state law. Second, because The Paquete Habana predated Erie, anything it said about customary international law needed to be explained in terms of Erie’s jurisprudential revolution. Moreover, The Hamilton (anticipating Erie) had said in a very similar context that state law was limited only by federal law and the Constitution. One could read Skiriotes as adopting the international-law-as-federal-common-law view of Erie (and then deciding for the State on the merits), although that might seem to give the Court too much credit for careful analysis of the matter. More likely, because Skiriotes seemed like an easy case, the Court did not use it to think comprehensively about the underlying relationships. The third case, Ex parte Quirin,169 involved the powers of Congress rather than the States. Quirin was a challenge to President Franklin Roosevelt’s decision, during World War II, to use a military commission, rather than a regular court, to try eight Nazi saboteurs captured in the United States. Principally it arose as a separation of powers challenge to the President’s unilateral authority, but the Court sidestepped that issue by finding (somewhat dubiously) that Congress had implicitly authorized military commissions for violations of the laws of war. This conclusion then raised the question whether Congress could (as the Court described it) “incorporate by reference” the international laws of war without further defining them. Citing the nineteenth-century piracy case United States v. Smith,170 the Court concluded that “it was no objection that Congress . . . has not itself undertaken to codify that branch of international law [i.e., the laws of war] or to mark its precise boundaries.”171 165 166 167 168 169 170 171

See Klaxon, 313 U.S. 496–97 (focusing on domestic concerns such as assuring “equal administration of justice in coordinate state and federal courts sitting side by side”). 313 U.S. 69 (1941). Blackmer v. United States, 284 U.S. 421 (1932). 313 U.S. at 72–73. 317 U.S. 1 (1942). 18 U.S. 153, 160–61 (1820) (finding that Congress could criminalize piracy in violation of the law of nations without further definition); see Chapter 1, pp. 33–34. 317 U.S. at 29–30.

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By reaffirming Smith, the Court allowed substantial latitude to Congress in incorporating international law. This result might provide some consolation to those concerned by Erie’s implications for international law enforcement. If Congress’s power to “define and punish . . . Offenses against the Law of Nations”172 was broad and flexible, and could be exercised through “incorporations by reference” (which would amount to a delegation to – in the more usual case – the federal courts), any reduction of federal courts’ independent power to find customary international law might seem less troubling.

III. Conclusion In sum, we might see the years from 1901 to 1945 as a period of decline for the direct application of customary international law, with seeds for potential future renewal. Customary international law’s direct application declined for a host of reasons. The subjects to which it previously applied most frequently – the private aspects of naval warfare – largely disappeared. It was increasingly crowded out by treaties and statutes that codified or superseded it and by expansion of constitutional protections that replaced it with domestic due process analysis. The Court failed to follow up on the ambitious empirical project promised in The Paquete Habana. Instead, it preferred in most cases to retreat to general statements or ipse dixit that conflated international principles with domestic constitutional or common law reasoning, concern over interfering with the conduct of foreign affairs, and simple common sense. The Court also failed to develop any systematic thinking about the relationship among Congress, the President, and customary international law, even as the United States and especially the President played an ever greater international role. Perhaps most importantly, the decision in Erie cast customary international law’s status within U.S. law into great theoretical and practical uncertainty. Yet despite the decline, one cannot ignore the seeds of potential future renewal. In multiple ways, the Court’s decisions of the period suggested, more strongly than before, the need to federalize matters of national and international concern. That was, of course, the overt message of cases such as Belmont and Curtiss-Wright; it was implied as well by the federalizing projects of Kansas v. Colorado and Jensen. And the express recognition in Hinderlider, Erie’s counterpart, of a preemptive federal common law in cases that transcend state concerns provided a potential vehicle for the Court, if it chose, to bring customary international law back – in whole or part – with even more power than it had possessed before. 172

U.S. Const. art. I, § 8.

8 International Law as an Interpretive Tool in the Supreme Court, 1901–1945 Roger P. Alford∗

At the start of the twentieth century, international law scholars sharply distinguished between two types of sovereignty: external and internal. “Internal sovereignty is that which is inherent in the people of any State . . . by its municipal constitution or fundamental laws” and that has as its object “internal public law” or “constitutional law.”1 By contrast, “[e]xternal sovereignty consists in the independence of one political society, in respect to all other political societies. . . . The law by which it is regulated has . . . been called external public law . . . but may more properly be termed international law.”2 International law focused exclusively on external sovereignty. “From the standpoint of international law, sovereignty is really regarded as signifying the independence of a State from other States.”3 Such sovereignty is always relative, because “[t]he nature of international relations . . . forbids us to emphasize the absoluteness of any one State at the expense of the others; since no one community can be regarded as wholly independent of the other members of the society of nations.”4 In analyzing the role of international law as an interpretive tool in the first half of the twentieth century, it is useful to keep these distinctions in mind. Before World War II, international law did not concern itself with internal sovereignty, only external sovereignty.5 The recurring theme during this period is that customary international law supports government action rather than curtails it.6 Frequently we see customary ∗

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Professor of Law, Pepperdine University School of Law. I gratefully acknowledge the research assistance of Daniel W. Robertson. This project was supported by a research grant from Pepperdine University. Henry Wheaton, Elements of International Law 34 (4th English ed. 1904). Id. The distinction between internal and external sovereignty dates from at least the mid-nineteenth century. See Henry Wheaton, Elements of International Law 29 (William Beach Lawrence ed., 6th ed. 1855) (containing identical language). Charles Edward Merriam, History of the Theory of Sovereignty since Rousseau 212 (1900). Id. at 213–14. There are, of course, exceptions. For a discussion of recourse to international law in defining one aspect of internal sovereignty (federal sovereign immunity), see Chapter 4, pp. 156–57. The most significant case during the period where the Court used customary international law to curtail government action was MacLeod v. United States, 229 U.S. 416 (1913). As discussed in Chapter 7, p. 242, MacLeod principally concerned the question whether a military order imposing tariffs in the Philippines during U.S. occupation extended to areas of the Philippines not under U.S. control. Relying on customary international law, the Court held it did not. The United States also argued that a subsequent act of Congress ratifying all U.S. military actions in the Philippines retroactively approved tariffs in non-occupied areas.

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international law (and sometimes foreign experience) supporting an expansive understanding of sovereignty that imposes few limits on the exercise of government power.7 Customary international law supports the legislature’s exercise of concurrent jurisdiction over extraterritorial conduct, reaching beyond traditional territorial limits. It supports the government in its quest to deny most constitutional protections to inhabitants of overseas possessions. Consideration of foreign law supports a narrow definition of inalienable rights that are essential to a free government. Customary international law supports war measures that arguably result in the most significant limits on constitutional liberties in American history. Finally, customary international law supports the national government’s exercise of foreign affairs powers in the absence of expressly enumerated constitutional authority. This role is not surprising given the undeveloped and immature nature of international law at the time, particularly with respect to human rights. With limited exceptions, individuals were not viewed as subjects of international law, but merely subjects of states. As Lassa Oppenheim put it in 1920: International law cannot grant international rights to individuals, for international rights and duties can only exist between States. . . . When . . . the Law of Nations recognizes the personal supremacy of every State over its subjects at home and abroad, these individuals appear just as much objects of the Law of Nations as the territory of the State does in consequence of the recognized territorial supremacy of the States. . . . [T]he so-called rights of mankind . . . [such as] the right to existence, the right to protection of honour, life, liberty, and property, the right of practicing the religion of choice, the right of emigration . . . do not in fact at present enjoy any guarantee whatever from the Law of Nations.8

Judge Thomas Buergenthal recently lamented that “[o]ne important consequence of the international legal doctrines in force before World War II was that the manner in which a state treated its own nationals or stateless persons in its territory was a matter exclusively within its own domestic jurisdiction.”9 Thus, to the extent international law imposed limits on states, those limits concerned respect for the rights of other states in the international arena. In the statutory interpretation context, the Court often used customary international law (or principles derived from it) as a guide to the scope of prescriptive jurisdiction based on notions of state sovereignty. The legislative power of the state was not unlimited, and there were sharply diverging viewpoints on the justification for imposing limits. In the antitrust context the Court slowly progressed from an approach grounded on

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The Court rejected this argument as well, relying on international law to limit the reach of the statute. As the Court stated: The statute should be construed in the light of the purpose of the government to act within the limitation of the principles of international law, the observance of which is so essential to the peace and harmony of nations, and it should not be assumed that Congress proposed to violate the obligations of this country to other nations, which it was the manifest purpose of the President to scrupulously observe, and which were founded upon the principles of international law. 229 U.S. at 434. However, the Court did not invoke MacLeod in subsequent cases during this period. In contrast, the Court frequently invoked treaties in statutory interpretation cases to constrain the exercise of government power. See Chapter 6, pp. 208–09. Lassa Oppenheim, International Law 459–62 (3d ed. 1920). Thomas Buergenthal, International Law and the Holocaust, in Holocaust Restitution: Perspectives on the Litigation and Its Legacy 20 (Michael J. Bazyler & Roger P. Alford eds., 2006).


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territorial sovereignty to one permitting concurrent jurisdiction based on the legitimate but competing interests of states. The role of international and foreign law as an interpretive tool in the constitutional context arose in four principal situations: the constitutional rights of inhabitants of newly acquired U.S. possessions after the Spanish-American War; the rights of individuals to bring constitutional challenges against U.S. States pursuant to the Fourteenth Amendment’s Due Process Clause; the laws of war as a justification for the political branches to take wartime measures that would otherwise infringe constitutional liberties; and the debates about the power of the executive branch to conduct foreign affairs in the absence of enumerated constitutional authority. In all of these situations, the Court used international law to help explain the nature of sovereignty generally, which in turn informed the nature and scope of U.S. sovereignty.

I. Statutory Interpretation During the period from 1901 to 1945 there were important developments regarding the role of international law in statutory interpretation. Antitrust law was a particular focus. The Sherman Act, passed in 1890, regulated anticompetitive conduct that harmed interstate and foreign commerce, especially “business combinations” or “trusts” – collections of companies that jointly held each other’s stock and ran their businesses to advance the economic interests of the combination. The question was whether such provisions reached foreign anticompetitive behavior consistent with international norms and practices. As discussed in earlier chapters, Chief Justice John Marshall had announced in Schooner Charming Betsy that U.S. courts would not construe acts of Congress to violate international law if any other construction remained possible.10 During the nineteenth century, the Supreme Court routinely applied this canon to avoid conflicts with both treaties and customary international law.11 In the first half of the twentieth century, the Court continued to rely on this presumption to avoid conflicts with treaties.12 But it is unclear what role the presumption played with respect to customary international law in statutory interpretation.13 Despite the fact that customary international law had long been understood to limit the ability of nations to regulate beyond their borders,14 the Court did not consistently look to it during the first half of the twentieth century to assess the extraterritorial reach of statutes.

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Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). See Chapter 1, p. 37; Chapter 4, pp. 130–41. See, e.g., United States v. O’Donnell, 303 U.S. 501, 512 (1938); Pigeon River Imp. Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934); Cook v. United States, 288 U.S. 102, 120 (1933); Karnuth v. United States, 279 U.S. 231, 239–41 (1929); United States v. Payne, 264 U.S. 446, 449 (1924); Johnson v. Browne, 205 U.S. 309, 321 (1907); see also Chapter 6, pp. 208–09. The association of this canon of interpretation with Schooner Charming Betsy seems not to have become standard until sometime later. Only one nineteenth-century case cited this case in support of the canon. See Young v. United States, 97 U.S. 39, 50 (1878); see also Chapter 4, p. 133, n. 85. In the first half of the twentieth century, only one Supreme Court opinion invoked Charming Betsy by name, and that was a dissenting opinion. See Cunard S.S. Co. v. Mellon, 262 U.S. 100, 132 (1923) (Sutherland, J., dissenting). See Joseph Story, Commentaries on the Conflict of Laws § 20 (1834).

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A number of explanations are possible. First, customary international law was evolving to permit greater extraterritorial regulation, particularly on the basis of effects, which made conflict with international law less likely.15 Indeed, when the Court looked to international law in statutory interpretation cases, it generally did so to support – rather than to restrain – the extraterritorial application of a statute.16 Second, during the late nineteenth century, the Court had begun to domesticate and constitutionalize rules concerning the conflict of laws, including rules on territoriality, that had originally been seen as part of the law of nations.17 Domestic conflicts rules provided a body of law to which the Court could look when construing the reach of statutes without invoking customary international law.18 Third, it may well be that the Court had no coherent idea of how to approach these questions of interpretation and simply seized whatever tools were closest to hand to justify what seemed to be the correct results.

A. American Banana and Strict Territoriality As discussed in previous chapters, the Supreme Court in the nineteenth century recognized the fundamental international rule that “the jurisdiction of a nation within its own territory is necessarily exclusive and absolute.”19 Consistent with that limit, the Court had occasion to address the extraterritorial application of federal laws, and it creatively concluded that U.S. consulates and U.S. vessels located outside U.S. boundaries were effectively part of U.S. territory and therefore within U.S. jurisdiction.20 The end of the nineteenth century saw the first great era of globalization. The mobility of capital, goods, information, and people integrated the world like never before, and the industrial revolution guaranteed for the United States a leading role. This belle e´ poque represented a virtuous circle of interdependence and prosperity.21 But it also provided new opportunities for collusion between businesses across borders. To address growing concerns of anticompetitive behavior at home and abroad, the United States passed the Sherman Antitrust Act of 1890, prohibiting “every contract, combination, . . . or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.”22 The statute set the stage for the Supreme Court to interpret the propriety of U.S. regulation of anticompetitive conduct on foreign soil. The Court’s earliest interpretations of the Sherman Act held that the law could apply extraterritorially to regulate foreign commerce. In 1904 the Supreme Court issued the 15

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17 18 19 20 21 22

See The S.S. “Lotus” (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 23 (no rule of international law prohibits jurisdiction on the basis of effects); Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am. J. Int’l L. (Supp.) 435, 487–94 (1935) (discussing principle of objective territoriality). See Blackmer v. United States, 284 U.S. 421, 437 (1932) (“With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government.”); Ford v. United States, 273 U.S. 593, 622–24 (1927) (quoting Moore’s International Law Digest). The principal exception is MacLeod v. United States, 229 U.S. 416 (1913), discussed supra pp. 257–58, n. 6. See Chapter 7, pp. 235–36. See William S. Dodge, Extraterritoriality and Conflict of Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101, 121–27 (1998) (tracing the effect of conflicts rules on extraterritoriality). The Schooner Exchange v. McFaddon, 11 U.S. 116, 136 (1812). See Chapter 4, pp. 125–28; Chapter 1, pp. 38–39. David Held & Anthony McGrew, Globalization Theory: Approaches and Controversies, 273 (2007). Sherman Act, ch. 647, § 1, 26 Stat. 209 (1890) (current version at 15 U.S.C. § 1 (2000)).


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stunning decision in Northern Securities Co. v. United States,23 holding that J. P. Morgan’s railroad trust was “a combination in restraint of interstate and international commerce” and that was “enough to bring it under the condemnation of the act.”24 The Court expressly held that Congress had “the power to establish rules by which interstate and international commerce shall be governed, and by the [Sherman] antitrust act, has prescribed the rule of free competition among those engaged in such commerce.”25 Justice Oliver Wendell Holmes, Jr. began his dissent with the now-famous aphorism: “Great cases, like hard cases, make bad law.”26 But five years later, in American Banana Co. v. United Fruit Co.,27 Justice Holmes struck back.28 The case presented a claim that the defendant had unlawfully controlled the banana market in Central America in violation of the Sherman Act, which declared illegal, among other things, restraint of trade “with foreign nations.”29 The facts of American Banana are complex. United Fruit allegedly held a monopoly on the banana trade in Central America, having bought out – or forcibly driven out – its competition. In 1903 an upstart competitor, Herbert McConnell, acquired land in Colombia for the cultivation and export of bananas. Later that year, with the naval support of the United States, the Republic of Panama seceded from Colombia, and McConnell’s land fell within Panama’s new territorial boundaries. Within days of Panama’s independence the United States secured rights to the Canal Zone and agreed to serve as the country’s military protector.30 In June 1904 McConnell sold his interest to American Banana, which was established for the purpose of growing bananas and importing them into the United States. The following month Costa Rican soldiers and officials, acting in concert with United Fruit, invaded Panama, seized American Banana’s plantation, and blocked further construction of the railway that would transport the fruit to the nearest port. The case had strong political overtones, as the land in question was within the de jure sovereignty of Panama but – as a result of Costa Rican military exploits – within the de facto control of Costa Rica.31 Pending a final resolution of the boundary dispute by treaty negotiations, Secretary of State Elihu Root concluded that Costa Rica’s duty as the de facto sovereign “was to preserve the property, not to destroy it, and hand it over to her de jure owner.”32 But, as Root concluded, the United States “disclaim[ed] any intention to interfere in this case to the prejudice of the rights of the United Fruit Company, or any other American interest already acquired in the territory immediately in question.”33 23 24 25 26 27 28

29 30 31

32 33

193 U.S. 197 (1904). Id. at 327. Id. at 331. Id. at 364 (Holmes, J., dissenting). 213 U.S. 347 (1909). Although Northern Securities did not involve extraterritoriality application of the Sherman Act, the Court’s expansive interpretation of the statute suggested it would apply extraterritorially to reach restraints on international commerce. Sherman Act, ch. 647, § 1, 26 Stat. 209 (1890) (current version at 15 U.S.C. § 1 (2000)). John T. Noonan, Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as the Makers of the Mask 75–78 (2002). Am. Banana, 213 U.S. at 359; Letter from Secretary of State Elihu Root to Minister Magoon on Rights of American Citizens in Disputed Territories (Apr. 16, 1906), in 2 Papers Relating to the Foreign Relations of the United States 1201 (Dept. of State ed., 2008) [hereinafter Root Letter]. Root Letter, supra note 31, at 1202. Id. at 1203.

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Thus, by the time the case reached the federal courts it was clear that, despite its role as a military suzerain, the U.S. government would not intervene to force a political solution to protect American interests. The collusive acts of United Fruit and Costa Rica in thwarting American Banana’s plans loomed large. Any finding against United Fruit would cast judgment on sovereign malfeasance. This background suggests that the decision in American Banana may have been animated by the Court’s desire to avoid sitting in judgment on the acts of another sovereign. Indeed, both the district court and the Second Circuit grounded their decisions not to intervene on the act of state doctrine, not on a presumption against extraterritoriality.34 On appeal to the Supreme Court, these sovereignty concerns were in play, with Justice Holmes declaring that “it is a contradiction in terms to say that, within its jurisdiction, it is unlawful to persuade a sovereign power to bring about a result that it declares by its conduct to be desirable and proper. . . . The very meaning of sovereignty is that the decree of the sovereign makes law.”35 But the Court went further and concluded that respect for the “comity of nations” required that the Sherman Act not be applied to extraterritorial conduct.36 Relying on conflict of laws authorities, the Court observed that “the general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act was done.”37 It continued: The foregoing considerations would lead, in case of doubt, to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. All legislation is prima facie territorial. Words having universal scope . . . will be taken . . . to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch. . . . We think it entirely plain that what the defendant did in Panama or Costa Rica is not within the scope of the statute so far as the present suit is concerned.38

The holding of American Banana is that statutes are presumed to apply only within the territory in which the sovereign has jurisdiction. Never mind that the affairs of United Fruit were directed from Boston and the complaint alleged that “there existed in the United States a combination in restraint of trade.”39 Although the Court recognized that there was “a conspiracy in this country to do acts in another jurisdiction,”40 because the operative facts all occurred abroad, they fell outside the scope of the statute. There is, we would later learn to say, a presumption against extraterritoriality grounded in sovereignty. Holmes concluded that “sovereignty is pure fact”41 and “the very meaning of sovereignty is that the decree of the sovereign makes law.”42 As applied to the case, Costa Rica was the de facto sovereign over the territory in question. It did not matter in 34 35 36 37 38 39 40 41 42

See Am. Banana Co. v. United Fruit Co., 160 F. 184, 187–88 (S.D.N.Y. 1908); Am. Banana Co. v. United Fruit Co., 166 F. 261, 265–66 (2d Cir. 1908). Am. Banana, 213 U.S. at 358. Id. at 356. Id. (citing Slater v. Mexican Nat’l R.R. Co., 194 U.S. 120 (1904); Milliken v. Pratt, 125 Mass. 374 (1878); Phillips v. Eyre, [1870] L.R. 6 Q.B. 1 (U.K.); A.V. Dicey, The Conflict of Laws (2d ed. 1908)). Id. at 357. Am. Banana, 160 F. at 185 (emphasis added); Noonan, supra note 30, at 103. Am. Banana, 213 U.S. at 359. Id. at 358. Id.


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the least, Holmes reasoned, that Panama was the de jure sovereign. Nor did it matter in the least that United Fruit so controlled the acts of Costa Rica that the term “banana republic” would soon find its way into the lexicon. Costa Rica had – through its military conduct and its courts – exercised sovereign authority over American Banana, and that was the end of the matter. The ideas of multiple sovereigns, or concurrent sovereignty, or one sovereign sitting in judgment on another were all logical impossibilities.43 Law was a system of sovereigns, and boundaries were the hermetic sealants. The Court applied American Banana’s strict territoriality to other federal statutes, rejecting British sailors’ claims for back wages against British vessels for employment outside the United States44 and refusing to extend a statute protecting railroad workers to injuries suffered abroad.45 As the Court put it in Sandberg, “[l]egislation is presumptively territorial and confined to limits over which the law-making power has jurisdiction.”46 Congress could try to regulate contracts made abroad, but even if they did, “foreign countries would continue to permit such contracts . . . no matter what our declared law or policy . . . might be.”47 Foreign sovereignty precluded extraterritoriality.

B. Sisal Sales and the Domestic Conduct Test Within a few short years the vision of strict territorial sovereignty quickly eroded. If the Sherman Act could not regulate anticompetitive behavior that ostensibly occurred exclusively in foreign countries, could it regulate conduct that transcended international borders? The answer was yes. Two years after American Banana the Court found that a global tobacco combination violated the Sherman Act.48 Two years after that the Court in United States v. Pacific & Arctic Railway Co.49 found that a combination of domestic and foreign corporations had unlawfully monopolized transportation routes between Alaska and Washington State that traversed Canadian territory. The defendants argued that, because part of the transportation route was outside of the United States, the U.S. antitrust laws did not apply. The Court summarily rejected the argument, concluding that if the Sherman Act had no extraterritorial operation, it “would put the transportation route described in the indictment out of the control of either Canada or the United States. These consequences we cannot accept.”50 The Court concluded that “if we cannot control foreign citizens or corporations operating in a foreign territory, we certainly may control such citizens and corporations operating in our territory.”51 The Court repeated this holding a few years later in Thomsen v. Cayser,52 finding that a conspiracy in restraint of trade between New York and South African ports violated the Sherman Act: “It is contended that the combination . . . was formed in a foreign 43 44 45 46 47 48

49 50 51 52

Noonan, supra note 30, at 107–09. Sandberg v. McDonald, 248 U.S. 185, 195–97 (1918). N.Y. Cent. R.R. Co. v. Chisholm, 268 U.S. 29, 31–32 (1925). Sandberg, 248 U.S. at 195. Id. at 196. United States v. Am. Tobacco Co., 221 U.S. 106, 171–72 (1911); see also United States v. Nord Deutscher Lloyd, 223 U.S. 512, 518 (1912) (the doctrine of American Banana does not apply to acts that, although committed abroad, become operative in the United States). 228 U.S. 87 (1913). Id. at 106. Id. 243 U.S. 66 (1917).

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country and that, therefore, it was not within the act of Congress. . . . To this we do not assent. . . . [T]he combination affected the foreign commerce of this country and was put into operation here. It, therefore, is within the law.”53 Finally, the Court sharply curtailed the holding of American Banana in the 1927 case United States v. Sisal Sales Corp.54 On its face, Sisal Sales was remarkably similar to American Banana, most notably in the corporate collusion with government actors to pass discriminatory laws forcing all competition out of the Mexican market for sisal.55 In 1921, the defendants secured legislation from the Yucatán state government to establish a government-owned corporation that held a monopoly on the purchase, sale, and export of sisal.56 The essence of the suit was that the defendants, in contracting with a foreign government monopoly, were unlawfully restraining trade in sisal. The defendants replied that American Banana was indistinguishable and that if the United States felt aggrieved by the actions of a foreign government monopoly the remedy was diplomacy, not litigation in U.S. courts sitting in judgment on another sovereign.57 The district court judge, Augustus Hand, concluded that American Banana was controlling, particularly given that any finding of unlawfulness would necessarily cast judgment on the actions of the Mexican and Yucatán government officials: The question is whether the defendants now should be restrained from dealing with the Sisal Sales Corporation and its principal, Comision Exportadora de Yucatan, because the latter is a monopoly created by the Government of Yucatan and protected by such favorable and discriminatory tax laws of that State that it is enabled to control the American market and fix prices in sisal. I think it is manifest from the decision of the Supreme Court in American Banana . . . that an agreement to procure monopolistic legislation in another country cannot be treated as unlawful by our courts.58

A unanimous Supreme Court – including Justice Holmes – disagreed. It concluded that the circumstances of the case were “radically different from those presented in American Banana” and distinguished the holding based on the locus of operative acts: Here we have a contract, combination, and conspiracy entered into by parties within the United States and made effective by acts done therein. The fundamental object was control of both importation and sale of sisal and complete monopoly of both internal and external trade and commerce therein. The United States complain of a violation of their laws within their own territory by parties subject to their jurisdiction, not merely of something done by another government at the instigation of private parties. True, the 53 54 55

56 57 58

Id. at 88. 274 U.S. 268 (1927). Id. at 273–74. Sisal is a fiber derived from the henequen plant, which grows exclusively in the Yucatán Peninsula of Mexico, and is used in the manufacture of binder twine, a product essential for the harvesting of cereal crops. Transcript of Record at 3, United States v. Sisal Sales Corp., 274 U.S. 268 (1927) (1926 FO No. 200), microformed on U.S. Supreme Court Records and Briefs (Microcard Eds.) (reprinting Petition to the District Court of the United States for the Southern District of New York). Appellee’s Brief at 10–13, United States v. Sisal Sales Corp., 274 U.S. 268 (1927) (1926 FO No. 200), microformed on U.S. Supreme Court Records and Briefs (Microcard Eds.). Id. at 35–38; Brief of Hanson & Orth at 39–44, United States v. Sisal Sales Corp., 274 U.S. 268 (1927) (1926 FO No. 200) microformed on U.S. Supreme Court Records and Briefs (Microcard Eds.). Transcript of Record at 52, 53–54, United States v. Sisal Sales Corp., 274 U.S. 268 (1927) (1926 FO No. 200), microformed on U.S. Supreme Court Records and Briefs (Microcard Eds.) (reprinting District Court Opinion).


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conspirators were aided by discriminating legislation, but by their own deliberate acts, here and elsewhere, they brought about forbidden results within the United States.59

This conclusion is puzzling. The conspiracy in American Banana was also entered into in the United States, and therefore it is difficult to distinguish that case – much less describe it as “radically different” – based solely on the contention that all relevant events in American Banana occurred abroad. It is true that Justice Holmes maintained that “the acts causing the damage were, so far as appears, outside the jurisdiction of the United States, and within that of other states.”60 But that is a strained understanding of harm. In American Banana the origins of the conspiracy were domestic, while the execution of the acts that harmed the foreign competitor occurred abroad. But if one broadened the scope of the harm – in the way the United States as plaintiff did in Sisal Sales but the foreign competitor in American Banana did not – then in both cases the harmful acts occurred at home (to domestic consumers) and abroad (to foreign competitors). Moreover, the foreign government action in Sisal Sales was at the heart of the monopolistic arrangement, which was done in an open and transparent manner through legislative enactments with the apparent public purpose of providing protection to Mexican farmers.61 By contrast, the government action in American Banana was undertaken through the violent incursion of the Costa Rican military into Panama and was lawful only by virtue of the fact that the U.S. government had concluded that Costa Rica had become the de facto sovereign. Thus, the Court in Sisal Sales ignored the sovereignty concerns articulated by Justice Holmes in American Banana in circumstances under which, comparatively speaking, one would think they deserved heightened respect. The doctrine that emerges from Sisal Sales is one that maintains a presumption against extraterritoriality, but a presumption that is easily overcome provided some component of the unlawful conduct occurs within the territory of the regulating state. This approach eschews Holmes’s notion of separate spheres of sovereignty and embraces concurrent jurisdiction over transnational conduct, including conduct that was undertaken in conjunction with and with the support of a foreign government.

C. Alcoa and the Effects Doctrine The death knell of strict territoriality came in 1945 with the decision of United States v. Aluminum Co. of America (“Alcoa”).62 The foreign defendant in the case, a Canadian company, established a foreign cartel with European corporations to fix quotas on the production of aluminum for global sale, including aluminum imported into the United States. The cartel thus artificially depressed the production of aluminum to the detriment of global and American markets at precisely the time when the war effort created tremendous demand for light metal, particularly in the production of military aircraft. The case against Alcoa was the longest trial in American history, with the United States taking one year to present its case and the defendants an additional fourteen 59 60 61 62

274 U.S. at 276. Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). Brief of Hanson & Orth at 28, United States v. Sisal Sales Corp., 274 U.S. 268 (1927) (1926 FO No. 200), microformed on U.S. Supreme Court Records and Briefs (Microcard Eds.). 148 F.2d 416 (2d Cir. 1945).

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months to present their defense. In reaching the conclusion that Alcoa was not an unlawful monopoly, Judge Caffey read an opinion from the bench for nine days. The protracted litigation led four Justices of the Supreme Court – Stone, Harlan, Reed, and Jackson – to be disqualified from the case on appeal, each of them having participated at the Justice Department in various stages of the litigation against Alcoa.63 In the absence of a quorum, the case languished on the docket of the Supreme Court, until Congress passed a statute permitting the Supreme Court to remand cases to the appellate courts in the absence of a quorum, which the Court promptly did in 1944.64 Regarding the territorial limits of the Sherman Act, the Second Circuit, per Judge Learned Hand, was forced to address anticompetitive conduct that had no obvious indicia of domestic conduct. The cartel was among foreign corporations that agreed to limit the production of aluminum on a global scale. The impact of such a cartel could reverberate through global markets, but its actual implementation was limited to conduct occurring on foreign soil. Neither the strict territorial approach of American Banana nor the domestic conduct approach of Sisal Sales could capture this arrangement.65 The question was whether the Sherman Act could nonetheless reach it. In answering this question, the Second Circuit focused solely on the Congress’s intent: “[W]e are concerned only with whether Congress chose to attach liability to the conduct outside the United States of persons not in allegiance to it. That being so, the only question open is whether Congress intended to impose the liability, and whether our own Constitution permitted it to do so: as a court of the United States we cannot look beyond our own law.”66 As to a presumption, Hand stated that general words in a statute should not be read “without regard to the limitations customarily observed by nations upon the exercise of their powers; limitations which generally correspond to those fixed by the ‘Conflict of Laws.’”67 Conflict of laws principles at that time recognized the notion of concurrent jurisdiction, with both the forum where events occur and the forum where consequences result having authority to legislate. Indeed, Judge Hand cited for support Section 65 of the first Restatement of Conflicts,68 which provided that “[i]f consequences of an act done in one state occur in another state, each state in which any event in the series of act and consequences occurs may exercise legislative jurisdiction to create rights or other interests as a result thereof.”69 Resort to the conflict of laws led to an analysis that was fully consistent with concurrent jurisdiction.70 63 64 65

66 67 68 69 70

George David Smith, From Monopoly to Competition: The Transformation of Alcoa, 1888–1986, at 201–02 (2003); Aluminum: Judge Caffey Says It’s Legal, Time, Oct. 13, 1941. United States v. Aluminum Co. of Am., 322 U.S. 716 (1944); Smith, supra note 63, at 207. That fact did not keep Judge Hand from citing both American Banana and Sisal Sales in support. See Alcoa, 148 F.2d at 443–44. Of the other Supreme Court cases that Hand cited, the most directly on point would seem to have been Ford v. United States, 273 U.S. 593 (1927), which sustained a criminal conviction for conspiring to smuggle liquor into the United States. Ford contains a long discussion of the effects doctrine in both American and international law. See id. at 620–24. 148 F.2d at 443. Id. Id. Restatement of Conflict of Laws § 65 (1934). Id., cmt. a (“When two or more states have legislative jurisdiction. A state may impose a liability upon any person whose conduct produces consequences within the state. Thus, one who does an act in one state which causes injury to a person in another state is subject to the legislative jurisdiction of the second state for harm so caused to the person in that state. Under the rule stated in § 64, he is also subject to the


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The key holding of Alcoa, then, is that “any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.”71 The additional gloss added by Hand was that the effects must be intended; it is not enough that there be intent but no consequences, or consequences but no intent. Foreign cartels among foreign corporations are unlawful under the Sherman Act if “they were intended to affect imports, and did affect them.”72 The “effects” test was sown into the jurisprudence of American law and soon became an accepted basis for extraterritorial jurisdiction, although its application to antitrust law remained controversial outside the United States for some time.73

D. Bowman and the Government Purpose Test The rise and fall of strict territoriality in the antitrust context occurred where congressional intent to apply the statute extraterritorially was uncertain. In these and similar circumstances,74 the Court initially presumed that Congress did not intend the law to apply extraterritorially. In other contexts, however, the purpose of the statute required extending its application beyond territorial limits. For example, in the 1922 case of United States v. Bowman,75 American and British defendants were criminally indicted for a conspiracy to defraud the United States based on acts that occurred on the high seas and within the port and city of Rio de Janeiro. Writing for a unanimous Court, Chief Justice William Howard Taft reasoned that the extraterritorial reach of a statute depends, first, on “the purpose of Congress as evinced by the description and nature of the crime, and [second,] upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations.”76 The Court in Bowman distinguished the territorial reach of statutes based on their purpose. In some cases, a presumption of strict territoriality is appropriate where the statute is intended to protect the peace and good order of the community – for example, statutes prohibiting assaults, murder, robbery, embezzlement, and business combinations. In such cases, “[i]f punishment . . . is to be extended to include those [acts] committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.”77 In other words,

71 72 73

74 75 76 77

legislative jurisdiction of the state in which his acts are performed.”). For a discussion of exclusive versus concurrent jurisdiction, see William S. Dodge, An Economic Defense of Concurrent Antitrust Jurisdiction, 38 Tex. Int’l L.J. 27 (2003). 148 F.2d at 443. Id. at 444. Compare George W. Haight, International Law and Extraterritorial Application of the Antitrust Laws, 63 Yale L.J. 639, 640 (1954) (“Extraterritorial application of American antitrust laws, as currently sought by the Department of Justice and recognized in recent court decisions, conflicts with public international law.”), with Restatement (Second) of Foreign Relations Law § 18 (1965) (embracing effects doctrine as legitimate basis for asserting jurisdiction but noting diplomatic protests); Roger P. Alford, The Extraterritorial Application of Antitrust Laws: The United States and European Community Approaches, 33 Va. J. Int’l L. 1, 4–5, 28–44 (1992) (discussing European Community’s approach to extraterritorial application of its competition law). See supra p. 263. 260 U.S. 94 (1922). Id. at 97–98. Id. at 98.

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with respect to such offenses there is a presumption against extraterritoriality, which may only be overcome by the express will of Congress. But the Bowman Court concluded that “the same rule of interpretation should not be applied to criminal statutes which are . . . not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated.”78 With such statutes a strict territorial interpretation would greatly “curtail the scope and usefulness of the statute and leave open a large immunity of frauds as easily committed by citizens on the high seas and in foreign countries as at home.”79 Criminal statutes that logically presume extraterritorial application include statutes punishing (1) a consul for certifying a false invoice; (2) the forging of ship’s papers; (3) the bribing of a U.S. naval officer; (4) the disposal of property captured as prize with the intent to defraud the United States; and (5) the stealing of arms, money, or other property furnished by the United States for military or naval service.80 Applying this reasoning to the statute in Bowman, the Court concluded that in punishing the submission of a false claim against the United States to any officer of the civil, military, or naval service, Congress had in mind a wide field of frauds on the government “in private and public vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States.”81 As to respect for the sovereignty of other nations, the Court had little to say. It simply noted that because only American defendants were in custody, “clearly it is no offense to the dignity or right of sovereignty of Brazil to hold them for this crime against the government to which they owe allegiance.”82 In some cases the statute was written such that it could only apply to foreign conduct. In Blackmer v. United States,83 the Court addressed a statute that required American citizens who were abroad to appear as witnesses in criminal trials if a U.S. court issued a subpoena demanding their appearance. When Harry Blackmer, a resident of Paris, failed to do so, he was held in contempt and punished under the statute. The Court concluded that “although resident abroad, the petitioner is subject to the taxing power of the United States. For disobedience to its laws through conduct abroad, he was subject to punishment in the courts of the United States. With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law.”84 These cases represent early and important limits on the scope of the traditional presumption against extraterritoriality. They suggest that, contrary to the reasoning of American Banana, defining an act as lawful or unlawful need not depend

78 79 80 81 82

83 84

Id. Id. Id. at 98–100. Id. at 101–02. Id. at 102. The Court upheld the application of U.S. laws to Americans abroad in a number of other cases as well. See United States v. Flores, 289 U.S. 137, 155–57 (1933) (federal criminal statute applied to murder of one American by another on an American vessel within territorial waters of Belgian Congo); Cook v. Tait, 265 U.S. 47, 55–56 (1924) (enforcing tax statute against American citizen located abroad based on income from property located abroad); see also Browder v. United States, 312 U.S. 335, 337 (assuming that law prohibiting use of a fraudulent U.S. passport extended to such uses abroad). 284 U.S. 421 (1932). Id. at 436–37.


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solely on a universal rule of deference to the law of the country where the act was done.85 Rather, one must look to the express or implied will of Congress in light of (1) the government interests at stake, (2) the locus of evils to be avoided through regulation, and (3) the appropriateness of asserting jurisdiction in light of considerations of international comity. In sum, at the start of the twentieth century the Court took a strict territorial sovereignty approach to the application of antitrust laws, creating a strong presumption against extraterritoriality. From this followed two decades of efforts to distinguish and limit the impact of American Banana based on evidence of some operative acts within the United States, culminating in Sisal Sales’ repudiation of American Banana on virtually identical facts. The strict territoriality approach met its ultimate demise in Alcoa in 1945 and has never recovered. Because Alcoa involved foreign companies with a foreign agreement, neither the strict territoriality nor the domestic conduct approach could capture the agreement. So the Second Circuit focused on the conflict of laws and state interest in regulating foreign conduct that harms legitimate sovereign interests. Since Alcoa, the “effects” test has become one of the most important bases for the extraterritorial application of statutory law. Alcoa’s focus on congressional intent and legitimate state interests is similar to the Court’s approach in other contexts, particularly criminal law. Long before Alcoa, the Court in Bowman held that a presumption against extraterritoriality could be overcome based on the government’s right to defend its legitimate interests wherever they were threatened. This line of reasoning suggested that U.S. courts could assert jurisdiction abroad based on considerations of congressional intent, the locus of the conduct or harm, and general concerns for the comity of nations.

II. Constitutional Interpretation As with statutory interpretation, the interplay between international law and constitutional law during the first half of the twentieth century focused on the idea of sovereignty. But the Court used sovereignty in constitutional interpretation in a broader sense to explain the scope and nature of government action in the international arena. International law understandings of sovereignty supported broad national power to conduct foreign affairs with surprisingly little regard for constitutional civil liberties. During this period, the Court used international law to enhance government power, including the forced occupation of territory, limitations on due process, the exercise of war powers, and the vesting of power in the President without express or implied constitutional authority.

A. The Insular Cases and Unincorporated Territories The question of U.S. law’s territorial reach has frequently arisen not only in the statutory context but also with respect to the Constitution. In its simplest formulation the question is whether the Constitution follows the flag to delimit U.S. conduct abroad.86 But predicate 85 86

Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). See Kal Raustiala, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law (2009).

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questions have proven to be equally difficult: What precisely constitutes U.S. territory, and does the Constitution apply in its entirety to that territory? At the end of the nineteenth century the United States was in an expansionist mood. By 1890 the closing of the western frontier was complete. If the United States’ destiny had further manifestations, it would have to look beyond the continent. In little more than a decade, the United States – in the Spanish-American War and otherwise – gained control over vast new territories, including Cuba, Hawaii, the Philippines, Puerto Rico, Guam, American Samoa, and the Panama Canal Zone. U.S. motivations in acquiring these territories are disputed. Some have suggested that the United States was motivated by a desire for strategic naval bases in the Pacific.87 Others have suggested that the motivation was liberation of oppressed peoples – what today we might describe as humanitarian intervention – with a view to holding these territories in trust pending their independence.88 Still others maintain that the motive was “commercial manifest destiny,” reflecting a desire to guarantee that foreign markets were available for American exports.89 On occasion President William McKinley struck this last tone, as in his final speech that emphasized that “our capacity to produce has developed so enormously and our products have so multiplied that the problem of more markets requires our urgent and immediate attention. . . . What we produce beyond our domestic consumption must have a vent abroad. The excess must be relieved through a foreign outlet. . . . The period of exclusiveness is past.”90 The motives for the Spanish-American War and the United States’ other acquisitions affected the status of these territories once acquired. To the extent that the United States was simply aiding the local population in achieving independence, describing such territories as incorporated within the United States seemed dubious. The best candidate for this theory was Cuba, which drafted its own constitution in 1901 and secured its formal independence in 1902.91 But for other territories, such as Puerto Rico and Hawaii, the long-term intentions of the United States were uncertain. As a matter of constitutional law, should a territory be treated differently if it were moving toward independence (Cuba), moving toward statehood (Hawaii), or in a potentially permanent state of limbo (Puerto Rico)? Should constitutional protections afforded to the local population of these territories vary depending on the nature of the possession? Beginning in 1901 the Supreme Court faced a series of challenges in the Insular Cases over whether these new overseas territories fell within the boundaries of the United States such that their inhabitants enjoyed constitutional protection. These challenges were considered in light of the background principles that “the Constitution has no

87 88

89 90 91

Walter LaFeber, The Cambridge History of American Foreign Relations 153 (1995). Carl Cavanaugh Hodge, US Presidents and Foreign Policy 185–86 (2007). The speech by Senator Redfield Proctor on March 17, 1898, outlining the troubles of the Cuban people at the hands of the Spanish, reflected this strand of reasoning and was influential in securing President McKinley’s support for war with Spain. Id. at 186. Kevin Phillips, William McKinley 87 (2003). William McKinley, President McKinley’s Last Speech (Sept. 5, 1901), reprinted in John Clark Ridpath, Memorable Addresses by American Patriots 94–95 (2001). See Neely v. Henkel, 180 U.S. 109, 120 (1901) (“[A]s between the United States and Cuba, that island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action.”).


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operation in another country”92 and the Constitution “extends to all places over which the government extends.”93 If a territory such as Puerto Rico had become incorporated into the United States, then should not the constitutional guarantee that “duties, imposts, and excises shall be uniform throughout the United States” apply to trade with that territory? In answering this question, the Court looked not only to constitutional text, history, and precedent but also to the rights of sovereigns to acquire territory under international law. As Justice Edward White put in his influential concurrence in Downes v. Bidwell:94 [B]y the general principles of the law of nations every government which is sovereign within its sphere of action possesses as an inherent attribute the power to acquire territory by discovery, by agreement or treaty, and conquest. It cannot also be gainsaid that as a general rule wherever a government acquires territory . . . the relation of the territory to the new government is to be determined by the acquiring power in the absence of stipulations upon the subject.95

Justice White’s use of international law was significant because it reflected an understanding that “the Framers drafted the Constitution conscious of background understandings of sovereignty derived from international law.”96 International law was part of the ambient environment at the Founding that granted freedom to states to structure the internal relationship with their territories as they saw fit. Justice White then examined the United States’ practice of territorial expansion, supported by Supreme Court precedent, to conclude that “under the Constitution, the government of the United States, in virtue of its sovereignty, supreme within the sphere of its delegated power, has the full right to acquire territory enjoyed by every other sovereign nation.”97 This survey of international law and American history led White to conclude that the territories were mere possessions of the United States, “foreign to the United States in a domestic sense” but yet “in an international sense . . . not a foreign country.”98 In short, after the Spanish-American War one could say that the sun never set on a growing American empire, but the Constitution was not the law of those lands. This reasoning, later adopted by a majority of the Court,99 created a new distinction between “incorporated territories” and “unincorporated territories”: Incorporated territories were known as such because they had been “incorporated into” the United States and thereby made an integral part of the United States (even if they had not yet been admitted into statehood); unincorporated territories, by turn, “belonged to” 92 93

94 95

96 97 98 99

Ross v. McIntyre, 140 U.S. 453, 464 (1891). Loughborough v. Blake, 18 U.S. 317, 318–19 (1820); see also Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 182, 207 (2002). 182 U.S. 244 (1901). Id. at 300 (White, J., concurring). Compare Fleming v. Page, 50 U.S. 603, 615 (1850) (occupied Mexican port of Tampico was part of the United States for purposes of international law, but not part of the Union under our Constitution); Chapter 1, pp. 38, 43 (discussing Fleming). Note, The Extraterritorial Constitution and the Interpretative Relevance of International Law, 121 Harv. L. Rev. 1908, 1914 (2008). Downes, 182 U.S. at 302 (White, J., concurring). Id. at 341 (White, J., concurring). See Dorr v. United States, 195 U.S. 138 (1904).

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but were not “a part of” the United States (and might never become states of the Union).100

However, it did not follow from this distinction that inhabitants of unincorporated territories enjoyed no protections from the U.S. government. Indeed, Justice White emphasized that there were certain fundamental rights that Congress simply could not violate: Whilst, therefore, there is no express or implied limitation on Congress in exercising its power to create local governments for any and all of the territories . . . , it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free government which cannot be with impunity transcended. . . . [T]here may nevertheless be restrictions of so fundamental a nature that they cannot be transgressed, although not express in so many words in the Constitution.101

The Court did not articulate which constitutional rights were fundamental, nor did it offer any guidance as to the methodology by which one might ascertain if a particular right enjoyed such a status. Its approach was, in essence, “natural law constitutionalism.”102

B. Individual Rights and Constitutional Comparativism In the individual rights context, the Court slowly began to embrace the use of empirical evidence to judge the constitutionality of government measures. It also struggled to find a theory to justify applying the Bill of Rights to the States through the Fourteenth Amendment. In both instances, it looked abroad for guidance. In the twentieth century the first notable use of foreign material in individual rights cases was a brief filed by Louis Brandeis on January 31, 1908, in Muller v. Oregon.103 The brief – which soon became famous as the Brandeis Brief – was the first and perhaps most important instance of the marshaling by legal counsel of “mountains of empirical and statistical evidence”104 of domestic and foreign practices to justify the constitutionality of a government measure. The case involved an Oregon law that imposed differential working conditions on women, ostensibly to protect them in their weaker physical condition from being subject to the same working hours as men. After canvassing the comparative practices, the conclusion was simple: [I]n view of the facts above set forth and of legislative action extending over a period of more than sixty years in the leading countries of Europe, and in twenty of our States, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women’s work in manufacturing and mechanical establishments and laundries to ten hours in one day.105 100 101 102 103 104 105

Christina Duffy Burnett, A Convenient Constitution? Extraterritoriality after Boumediene, 109 Colum. L. Rev. 973, 982–83 (2009). Downes, 182 U.S. at 290–91 (White, J., concurring). Gerald Neuman, Whose Constitution?, 100 Yale L.J. 909, 962–64 (1991). Brief for the State of Oregon, Muller v. Oregon, 208 U.S. 412 (1908), 1908 WL 27605 [hereinafter Brandeis Brief]. Kermit Roosevelt III, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 990 (2006). Brandeis Brief, supra note 103, at ∗ 113.


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The Court described the Brandeis Brief as “a copious collection” of relevant material, which presented evidence of “a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.”106 As a result of this evidence, the Court remarkably upheld the measure even at the height of the Lochner era.107 The brief created a sensation, with then-Professor Felix Frankfurter describing Muller as “epoch making, not because of its decision, but because of the authoritative recognition by the Supreme Court that the way in which Mr. Brandeis presented the case – the support of legislation by an array of facts which established the reasonableness of the legislative action, however it may be with its wisdom – laid down a new technique for counsel.”108 The case, of course, had nothing to do with international law. It would be more than a decade before a newly established International Labor Organization would begin considering labor issues at the international level. But for the first time, the constitutionality of a measure was determined on the basis not of abstract legal concepts, but of the social and economic implications of the law.109 The Brandeis approach to constitutional adjudication – which he continued as a Supreme Court Justice – was to (1) examine the evils the law intended to cure, (2) consider what remedies the law provided, and (3) determine the results obtained from the law and other laws dealing with similar situations.110 It was, in a real sense, the birth of empirical constitutional comparativism. Later that same year, in Twining v. New Jersey,111 the Court turned to constitutional comparativism to decide another question of individual rights: which provisions of the Bill of Rights should be incorporated through the Fourteenth Amendment to apply to the States? The question in Twining was whether self-incrimination in a state criminal proceeding violated the Fourteenth Amendment guarantee of due process. The Court recognized the possibility that “some of the personal rights safeguarded by the first eight amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law.”112 Although the meaning of due process was “elusive,”113 the Court observed “‘that there are certain immutable principles of justice which inhere in the very idea of free government.’”114 In determining 106 107

108

109 110 111 112 113 114

Muller v. Oregon, 208 U.S. 412, 420 (1908). Oregon subsequently expanded the ten-hour work day to all industrial workers, both men and women. Again the Court referenced comparative experiences in other countries. See Bunting v. Oregon, 243 U.S. 426 (1917) (“Statistics show that the average daily working time among workingmen in different countries is, in Australia, 8 hours; in Britain, 9; in the United States, 9 3/4; in Denmark, 9 3/4; in Norway, 10; Sweden, France, and Switzerland, 10 1/2; Germany, 10 1/4; Belgium, Italy, and Austria, 11; and in Russia, 12 hours.”). Felix Frankfurter, Hours of Labor and Realism in Constitutional Law, 29 Harv. L. Rev. 353, 365 (1916); Alan Dershowitz, The Practice, N.Y. Times (Sept. 25, 2009) (“It is difficult to overstate the revolutionary consequences of this tactic. Before the introduction of the Brandeis brief, the law was seen by conservatives as a formal series of rules representing eternal verities, unchangeable by new circumstances. Brandeis presented a direct challenge to the old regime by demanding that the law be responsive to new realities, based on new facts.”). Marion E. Daro, The Brandeis Brief, 11 Vand. L. Rev. 783, 793 (1958). Id. 211 U.S. 78 (1908). Id. at 99. Id. at 100. Id. at 102 (quoting Holden v. Hardy, 169 U.S. 366, 389 (1898)).

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whether the right was an essential part of due process, the Court considered not only the settled practices of England and America115 but also whether the right was guaranteed in other civilized nations. The answer was no: The wisdom of the exemption has never been universally assented to since the days of Bentham, many doubt it today, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the jurisprudence of civilized and free countries outside the domain of the common law.116

While the Court failed to recognize the privilege against self-incrimination as a fundamental right of due process applicable to the States, it had developed a test for the Fourteenth Amendment due process that would, in due course, change the face of constitutional law. Thirty years later the Court revisited Twining in the double jeopardy case of Palko v. Connecticut.117 The Court was unwilling to accept a blanket rule of incorporation, but accepted that some civil liberties enumerated in the Constitution applied to the States if “they have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the state.”118 The concept of “ordered liberty” of civilized societies was the hook on which the Court justified constitutional comparativism and would do so in subsequent generations. As to which rights were implicit in ordered liberty, the Court concluded that it could discern a principle defined, in part, by the practices of other nations: The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. . . . Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them. What is true of jury trials and indictments is true also . . . of the immunity from compulsory self-incrimination. This too might be lost, and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether.119

The Court then noted that “[c]ompulsory self-incrimination is part of the established procedure in the law of continental Europe” and “[d]ouble-jeopardy too is not everywhere forbidden.”120 Thus, both Twining and Palko relied on foreign law to curtail civil liberties rather than to expand them.121 115 116 117 118 119 120 121

See id. at 102–13. Id. at 113. 302 U.S. 319 (1937). Id. at 324–25. Id. at 325–26. Id. at 326 n.3. This experience is far more common in constitutional comparativism than is generally appreciated. See Roger P. Alford, Four Mistakes in the Debate on “Outsourcing Authority,” 69 Alb. L. Rev. 653, 674–79 (2006).


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We, of course, know the rest of the story. From these early ruminations, the Court selectively applied the Bill of Rights to the States based on its conception of fundamental due process (and ultimately almost all such rights were “incorporated” against the States in this fashion).122 It then went further and divined the concept of “substantive” due process, finding limits on state and federal action based on rights deeply rooted in American history and tradition and implicit in ordered liberty, even if not expressly mentioned in the Bill of Rights.123 The Court defined ordered liberty not by reference to international law, but (at times, at least) by examination of the practices of civilized nations.124 The seed planted in Twining and Palko slowly germinated a decade later in Adamson v. California125 and then fully flowered in Griswold v. Connecticut126 and its progeny. The most coherent arguments for reliance on foreign or international law in constitutional interpretation are the twin approaches of pragmatic empiricism and natural law constitutionalism. Both approaches have their roots in the first four decades of the twentieth century. I have argued elsewhere: “Pragmatism is the leading candidate for a constitutional theory that can credibly justify recourse to comparative material. Firm in the belief that constitutional decision making should employ empirical means to reach consequentialist ends, a pragmatist may examine experiences from abroad to shed light on possible solutions to similar problems at home.”127 Likewise, “[w]ith substantive due process, implicit ordered liberty offers an undeniable link to the disfavored natural law constitutional tradition. That tradition affords ample opportunity for constitutional comparativism. International law is replete with claims of universality, and ordered societies structure themselves consistent with general notions of fairness and justice.”128 But precisely because both approaches are not rooted in constitutional text and permit freerange harvesting of supposed international best practices, these approaches continue to be highly controversial methods for resolving constitutional questions.

C. Sovereignty and War Powers There were, of course, other uses for international law in constitutional interpretation. In a series of cases during this period the Court relied on international law to interpret the Constitution in ways that limited the application of civil liberties and expanded the power of the political branches to regulate. This pattern is especially evident in the context of war, where the Court sharply curtailed constitutional protections against government conduct consistent with the laws of war. In 1909 the Court in Juragua Iron Co. v. United States129 relied on international law to limit the power of an American corporation in Cuba to sue for compensation under the Fifth Amendment and a related claims statute. The corporation had been in 122 123 124 125 126 127 128 129

See Duncan v. Louisiana, 391 U.S. 145 (1968). See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997). See Chapter 12, pp. 410–14. 332 U.S. 46 (1947). 381 U.S. 479 (1961). Roger P. Alford, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. Rev. 639, 692 (2005). Id. at 673. 212 U.S. 297 (1909).

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the mining business in Cuba when the Spanish-American War broke out. On July 11, 1898, the United States destroyed several dozen of Juragua Iron’s buildings to prevent the spread of yellow fever to American troops fighting in Santiago. The Court reasoned that in time of war the United States could destroy American property located in enemy territory without compensation: [A]n American corporation, doing business in Cuba, was, during the war with Spain, to be deemed an enemy of the United States . . . and such property could be regarded as enemy’s property, liable to be seized and confiscated by the United States in the progress of the war then being prosecuted; indeed, subject, under the laws of war, to be destroyed whenever, in the conduct of military operations, its destruction was necessary for the safety of our troops or to weaken the power of the enemy.130

The American corporation could no more sue for compensation resulting from property damage in the Spanish-American War than could a Spaniard residing there. The laws of war limited the Fifth Amendment’s protections to peacetime.131 The role of international law in interpreting war powers was raised again in an unusual fashion in the 1931 case of United States v. Macintosh.132 A Canadian conscientious objector was denied U.S. citizenship based on statements in his naturalization interview to the effect that he would not unqualifiedly swear to take up arms to defend the United States. The Court upheld the denial of his application for naturalization, stating that “Congress is empowered ‘to declare war,’ which necessarily connotes the plenary power to . . . to raise armies, which necessarily connotes the like power to say who shall serve in them and in what way.”133 The Court then opined that “[f]rom its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.”134 That quote, although dicta, is the most significant instance in which the Supreme Court has stated that the constitutional power to wage war is limited by international law. Precisely why it is so limited is not stated. Perhaps it was for historical reasons based on a discernment of the Framers’ intent.135 Perhaps it was based on the inherent logic of 130 131

132 133 134 135

Id. at 305–06. Of course, the result could also be explained on the theory that the Fifth Amendment did not apply extraterritorially, although the Court did not suggest that was the reason for its conclusion. This is reminiscent of the Court’s holding in the Prize Cases, 67 U.S. 635 (1863). See Chapter 4, pp. 142–44. For further discussion of Juragua Iron, see Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1, 66–67 (2006). For a modern discussion of the “enemy property doctrine,” see Stephen Vladeck, Enemy Aliens, Enemy Property, and Access to the Courts, 11 Lewis & Clark L. Rev. 963, 986–91 (2007). A similar case is Dooley v. United States, 182 U.S. 222 (1901). Dooley raised the question whether the President, without specific approval of Congress, could impose tariffs on products imported from New York into Puerto Rico during the Spanish-American War. Relying on customary international law, the Court upheld the President’s authority, despite its lawmaking nature, as a matter of military necessity under the laws of war. Id. at 230–33 (relying principally on the nineteenth-century case Cross v. Harrison, 57 U.S. 164 (1854)). The Court also found that the President’s authority to impose tariffs terminated on ratification of the treaty ending the war and ceding Puerto Rico to the United States, because at that point Puerto Rico became part of the United States. 182 U.S. at 233–36 (relying on De Lima v. Bidwell, 182 U.S. 1 (1901), which held that Puerto Rico was not a “foreign country” for purposes of the U.S. tariff laws after the treaty’s ratification). 283 U.S. 605 (1931). Id. at 622. Id. In the same paragraph the Court quotes John Quincy Adams at length. See id.


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having war powers limited in light of traditional limitations imposed on every sovereign by the laws of war. Or perhaps it was simply that a greater degree of deference would be accorded to war measures that were consistent with international law. Another key war powers case came in 1942. In Ex parte Quirin,136 the Supreme Court addressed whether the constitutional rights to grand jury indictment and trial by jury applied to prosecutions for violations of the laws of war. The defendants were German saboteurs indicted before a military commission for aiding Germany through espionage and other violations of the laws of war. The Court reasoned that from the beginning of our nation’s history the Court had “recognized and applied the laws of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. . . . Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war.”137 The laws of war distinguished between lawful and unlawful combatants and placed spies who waged war without uniform in the latter category. As for the argument that trial before a military tribunal without a jury violated the Fifth and Sixth Amendments, the Court examined the history of military prosecution of unlawful enemy combatants and concluded that since the Founding these constitutional provisions had never been interpreted to prevent an alien spy, in time of war, from being tried by a military tribunal without jury.138 Moreover, given that the Constitution does not afford such protection to the members of our own armed forces, it could not have been the intent of the Framers “to extend trial by jury to the cases of aliens or citizen offenders against the law of war otherwise triable by military commission, while withholding it from members of our own armed forces.”139 The Court concluded that “the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.”140 Quirin suggests that the constitutional guarantees of grand jury indictment and trial by jury are inapplicable when the laws of war have been violated, at least when the defendants are enemy aliens. Because the laws of war are not fixed but continuously updated to address contemporary military circumstances, the scope of those constitutional guarantees contracts as the law of war expands. The most extreme examples of reliance on military necessity to justify limitations on constitutional guarantees were the Japanese curfew and exclusion cases of Hirabayashi v. United States141 and Korematsu v. United States.142 Unlike the other cases discussed so far, these holdings do not clearly stipulate whether international law was a factor in upholding the government action. In Hirabayashi, regulations imposed a mandatory curfew from 8:00 p.m. to 6:00 a.m. on all persons of Japanese ancestry residing in designated zones. The regulations at issue in Korematsu went much further, requiring 136 137 138 139 140 141 142

317 U.S. 1 (1942). Id. at 28–30. Id. at 41–42. Id. at 44. Id. at 45. 320 U.S. 81 (1943). 323 U.S. 214 (1944).

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the evacuation of all persons of Japanese ancestry from the West Coast. The plaintiffs raised numerous arguments that these restrictions were unconstitutional. The essential question in these cases was the scope of the war powers. Quoting Macintosh, the United States argued that “[f]rom its very nature, the war power; when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.”143 The U.S. brief further argued that the “[e]vacuation of persons from critical areas is a familiar exercise of war power and constitutes recognized military strategy both here and abroad.”144 In support the United States cited the practices in Britain and Canada, which provided for the evacuation of individuals from protected areas and allowed distinctions between different classes of persons.145 The Supreme Court agreed with the United States’ general position, but made no explicit reference to international law. It stated in Hirabayashi: The war power of the national government is “the power to wage war successfully.” It extends to every matter and activity so related to war as substantially to affect its conduct and progress. . . . It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. . . . It has necessarily given [the Executive and Congress] wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.146

The Court then concluded that the measures in question “afforded a reasonable basis for the action taken in imposing the curfew. . . . It is enough that circumstances within the knowledge of those charged with the responsibility for maintaining, the national defense afforded a rational basis for the decision which they made.”147 In light of the United States’ invocation of international law and comparative practices in its brief in Hirabayashi, there are two ways to interpret the Court’s silence with respect to the role of international law as a limit on constitutional war powers. One is that the Court did not believe that international law had a meaningful role in defining the scope of the war powers. The other is that the Court concluded that whatever role international law had in limiting the war powers, that limit was irrelevant to the instant case given that the measure did not violate the law of nations.148 143 144 145 146 147 148

Brief of the United States, Hirabayashi v. United States, 320 U.S. 81 (1943), 1943 WL 71885, at ∗ 47. Id. at ∗ 50. Id. at ∗ 50–52. 320 U.S. at 93. Id. at 101–02. The Court took the latter approach in Miller v. United States, a case cited in Hirabayashi with respect to the scope of the war powers. See Miller v. United States, 78 U.S. 268, 305 (1870) (“It is argued that though there are no express constitutional restrictions upon the power of Congress to declare and prosecute war, or to make rules respecting captures on land and water, there are restrictions implied in the nature of the powers themselves. Hence it is said the power to prosecute war is only a power to prosecute it according to the law of nations, and a power to make rules respecting captures is a power to make such rules only as are within the laws of nations. Whether this is so or not we do not care to inquire, for it is not necessary to the present case.”). In dissent, Justice Field concluded that the law of nations necessarily imposed a limit on constitutional war powers. See id. at 315 (Field, J., dissenting) (“The war powers of the government have no express limitation in the Constitution, and the only limitation to which their exercise is subject is the law of nations. That limitation necessarily exists.”).


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D. Curtiss-Wright and Inherent Powers Arguably the most important case in the history of the Supreme Court on international law as a tool for interpreting the Constitution is the 1936 case of United States v. CurtissWright Export Corp.149 Its holding continues to reverberate today, most notably with respect to whether the President enjoys extra-constitutional authority to conduct foreign affairs. In the early 1930s collective security was the great hope for international peace. The principal mechanism for achieving collective security was Article X of the Covenant of the League of Nations, which provided that “[t]he Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.”150 In 1932 landlocked Bolivia invaded the Chaco region of Paraguay with the aim of securing a route to the Atlantic Ocean through the Paraguay River. In addition, oil had been discovered in 1928, adding to the luster of the region. Although the Chaco War involved minor powers, it was a major test of the League’s ability to promote collective security. Success was critical to maintaining the League’s reputation, for if it could not prevent wars between small nations in South America, how could it hope to stand up to Mussolini’s ambitions in Abyssinia or Hitler’s eastward glances? From the start of the war, the League actively (but unsuccessfully) promoted a peaceful resolution of the dispute. It proposed an arms embargo to prevent the two landlocked agrarian countries from securing the arms necessary for a protracted conflict.151 Although the United States had not joined the League, President Franklin Roosevelt’s Secretary of State Cordell Hull was sympathetic to its aims of collective security.152 An arms embargo against both belligerents could promote collective security while also pacifying American isolationists’ demands to maintain American neutrality. In February 1934 the League’s Chaco Commission proposed an international arms embargo,153 and in support of that proposal Congress passed a joint resolution in May 1934 authorizing the President to outlaw the sale of arms to either Bolivia or Paraguay if he determined that an arms embargo would contribute to the reestablishment of peace. Shortly thereafter, Roosevelt issued a proclamation outlawing the sale of arms.154 Curtiss-Wright and several other arms manufacturers were indicted for violations of the arms embargo based on evidence that they had shipped bombers to Bolivia under the guise of commercial airplanes.155 The district court relied on the Supreme Court’s recent ruling in Schechter Poultry Corp. v. United States to find the joint resolution an unconstitutional delegation of legislative power to the Executive.156 In its brief to the Court, the United States sought to distinguish Schechter and relied 149 150 151 152 153 154 155 156

299 U.S. 304 (1936). League of Nations Covenant art. 10. Bruce W. Farcau, The Chaco War: Bolivia and Paraguay, 1932–1935, at 199 (1996); Anique H.M. van Ginneken, Historical Dictionary of the League of Nations 56 (2006). Howard Jablon, Crossroads of Decision: The State Department and Foreign Policy, 1932–1937, at 68–78 (2002). See Ginneken, supra note 151, at 56. Curtiss-Wright, 299 U.S. at 312–13. See Embargo Argued in Supreme Court, N.Y. Times, Nov. 20, 1936, at 10. 14 F. Supp. 230, 235 (S.D.N.Y. 1936) (citing A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935)).

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on longstanding Supreme Court jurisprudence to support the constitutionality of the measure.157 The Supreme Court took a different approach altogether, concluding that the President’s power to conduct foreign affairs did not rest in the express or implied powers of the Constitution. The decision was penned by Justice George Sutherland, who had been a Senator from Utah during World War I and had thought deeply about the role of the Constitution in foreign affairs for years. In 1909 Senator Sutherland outlined his understanding of national foreign affairs powers in an article entitled The Internal and External Powers of the National Government.158 Sutherland noted that Chief Justice Marshall in McCulloch v. Maryland had recognized that “Congress possessed not only those powers which were expressly conferred, but implied power to pass all legislation necessary to carry them into effect.”159 But the doctrine of implied powers proved insufficient, even if expanded to include powers that “could be deduced from a number of express powers grouped together, or from the sum total of all of them combined.”160 Instead, “some of the [Court’s] decisions can be logically justified only upon the theory that the Government possesses certain powers which result from the fact that it is a National Government and the only Government capable of exercising the powers in question.”161 Sutherland’s solution to the constitutional conundrum was the idea of “resulting powers”: Because of the dual character of the agency which exercises the domestic sovereignty of the [American] people the line between the state and federal powers has been carefully drawn. . . . Over external matters, however, no residuary powers do or can exist in the several States, and from the necessity of the case all necessary authority must be found in the National Government, such authority being expressly conferred or implied from one or more of the express powers, or from all of them combined, or resulting from the very fact of nationality as inherently inseparable therefrom.162

Sutherland expanded on this thesis in December 1918 in a series of lectures at Columbia University. Presenting what he described at the time as “an entirely new theory of the Constitution” that reflects the role of the United States as a world power,163 he argued that because “the United States has become a world power, the Constitution should be strictly interpreted at home, but most broadly interpreted in connection with world politics and policies.”164 He explained the need for a new constitutional theory: The time is fast approaching, if it be not already here, when we must be able to assert and maintain for that government the unimpaired powers of complete external sovereignty. We must not – we cannot – enter upon this field of amplified activity with half-developed limbs. The complete powers of the governments of other nations must be matched by the complete powers of our own government. . . . To be obliged to confess . . . that the government lacked sufficient authority, because of the absence of 157 158 159 160 161 162 163 164

Brief for the United States, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (No. 98). George Sutherland, The Internal and External Powers of the National Government, S. Doc. No. 417, 61st Cong., 2d Sess. (1909), reprinted in 191 N. Am. Rev. 373 (1910). Id. at 7. Id. Id. at 7–8. Id. at 12. Sees Aid to Peace in Monroe Doctrine, N.Y. Times, Dec. 10, 1918, at 12. Id.


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affirmative language in the Constitution, would be most humiliating and regrettable; and to find the power only after a microscopic search of that instrument, and a strained or doubtful interpretation of its words, would be almost as unfortunate. . . . We must cease to measure the authority of the general government only by what the Constitution affirmatively grants, and consider it also in the light of what the Constitution permits from failure to deny.165

Four years later, in 1922, Sutherland took a seat on the Supreme Court and waited for the opportune moment to transform his grand theory into law. It finally came in 1936 with Curtiss-Wright. He began the opinion in Curtiss-Wright by emphasizing that there are two types of federal power: “foreign or external affairs” and “domestic or internal affairs.” These two powers are different, he continued, “both in respect of their origin and their nature.”166 The federal government’s power to act only pursuant to enumerated powers “is categorically true only in respect of our internal affairs.”167 The reserved powers of the States limit the freedom of the federal government in this field. But “this doctrine applies only to powers which the states had” and “since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers.”168 Thus external affairs powers do “not depend upon the affirmative grants of the Constitution.”169 Rather, their source is found in the notion of external sovereignty under international law: As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. The power to acquire territory by discovery and occupation, the power to expel undesirable aliens, the power to make such international agreements as do not constitute treaties in the constitutional sense, none of which is expressly affirmed by the Constitution, nevertheless exists as inherently inseparable from the conception of nationality. This the court recognized and in each of the cases cited found the warrant for its conclusions not in the provisions of the Constitution but in the law of nations.170

In other words, external sovereignty exists by virtue of the nation’s status as a member of a community of nations, and whether or not the Constitution vested authority to take certain action in the conduct of foreign affairs, that action would be warranted simply as an incident of nationhood. This critical holding thus relied on the law of nations to provide the content of foreign affairs powers.171 The next movement in the opinion was different, radical, and logically unconnected to the first proposition. Justice Sutherland argued, “In this vast external realm, with its important, complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the nation.”172 He summarized the many advantages that the President has over Congress to conduct foreign affairs and concluded that the power to conduct foreign affairs is inherent in the executive branch: “It is important to bear in mind that we are here dealing not alone with an authority vested in 165 166 167 168 169 170 171 172

George Sutherland, Constitutional Power and World Affairs 171–72 (1919). United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315 (1936). Id. at 316. Id. Id. at 318. Id. See also Chapter 7, pp. 242–43 (discussing Curtiss-Wright’s application of international law). Id. at 319.

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the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”173 The Court all but ignored the numerous affirmative grants of power to Congress in its vision of inherent executive authority. There are four ways to view Curtiss-Wright: as a case about (1) federalism, (2) separation of powers, (3) international relations and the power of the United States to effectively maintain external sovereignty vis-à-vis other nations, and (4) the origin of national power stemming from sources outside the Constitution – the so-called extra-constitutional inherent powers. Of course, Curtiss-Wright is all four of these and more, and its power to persuade depends on the lens one uses to view the case. If the decision is judged from the first or second perspective, it has serious defects. Some scholars have focused on the Constitution’s text to resist Sutherland’s notion of inherent authority; for them, the Tenth Amendment, combined with the enumerated restrictions on specific state foreign affairs activities in Article I, Section 10, undermines the idea that all foreign affairs power is national power.174 Other scholars have emphasized separation of powers and noted that the conduct of foreign affairs often occurs in the realm of concurrent authority, under presidential management, but subject to congressional oversight and judicial review; the Constitution expressly vests too many foreign affairs powers in Congress to take Curtiss-Wright as an accurate statement of the balance of power between the national political branches.175 The third perspective does not feature prominently in most readings of Curtiss-Wright, but it seems to be the principal motivation for Sutherland’s development of a new theory of constitutional power. As the United States was becoming a great power, it was critical for the country to have a constitutional system flexible enough to meet the demands of the twentieth century and capable of empowering the national government to take action where no affirmative constitutional authority had been granted. On this reading, the holding was simply a pragmatic means of achieving effective governance in the international arena. From this perspective, the decision succeeded spectacularly in its aims, filling the “lacunae” of constitutional authority with vast presidential power.176 The fourth perspective has also generated substantial criticism. It is a startling proposition to say that the national government derives its authority from a source outside the Constitution, and it is one that may be difficult to defend on the basis of the Framers’ understandings.177 But while Curtiss-Wright has been interpreted as embracing extraconstitutional authority,178 that reading is not required. An alternative reading would consider the decision in light of Sutherland’s earlier writings,179 which suggest that he 173 174 175

176 177 178 179

Id. at 319–20. E.g., Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 17–23 (2007); Jack L. Goldsmith, Federal Courts, Federal Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997). E.g., Harold Koh, The National Security Constitution 95, 225 (1990). Of course, today one cannot read Curtiss-Wright without reference to Youngstown and the wellspring of congressionally delegated authority. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). See Louis Henkin, Foreign Affairs and the U.S. Constitution 13–15 (2d ed. 1996). See Ramsey, supra note 172, at 29–48; Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 Yale L.J. 1, 32 (1973). E.g., Chapter 7, pp. 242–43. For a detailed discussion of these earlier writings, see G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1, 49–62 (1999); David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 Yale L.J. 467, 472–78 (1946).


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viewed the content of external sovereignty as derived from the law of nations, but the source as constitutional, “resulting from the very fact of nationality as inherently inseparable therefrom.”180 Even if foreign affairs powers are not express or implied in any particular constitutional provision or a combination thereof, they result from the constitutional order. In both his 1909 article and his 1918 Columbia University lectures, Sutherland quoted Alexander Hamilton in support of this idea: “There are express and implied powers, and the latter are as effectively delegated as the former; there is also another class of powers which may be called resulting powers – resulting from the whole mass of the power of government, and from the nature of political society, rather than as a consequence of an especially enumerated power.”181 The example Sutherland gave of such a “resulting power” was the acquisition of new territories under Jones v. United States,182 precisely the same example he provided in Curtiss-Wright. Another example was the Legal Tender Cases,183 which he quoted for the proposition that, “in the judgment of those who adopted the Constitution there were powers created by it not specified nor deducible from, or ancillary to, any one specified power ‘but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted.’”184 On this reading, the theory of Curtiss-Wright is similar to that of the Legal Tender Cases – which in turn relied on McCulloch v. Maryland to justify resulting (or incidental) powers – recognizing that the national government has powers derived from the constitutional framework rather than specific enumerated provisions.185 This theory would hold that international law is not the source of external sovereignty but provides the terms of the acceptable exercise of that power.

III. Conclusion The story of international law as an interpretive tool in the first half of the twentieth century was principally a story of promoting respect for sovereignty, condoning assertions of government power,186 and balancing competing national interests among the community of nations.

180 181

182 183 184 185

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Sutherland, supra note 158, at 12. Sutherland, supra note 165, at 51–52 (quoting Alexander Hamilton, An Opinion on the Constitutionality of an Act to Establish a Bank (Feb. 23, 1791), in 8 The Papers of Alexander Hamilton 97 (Harold C. Syrett ed., 1965)); Sutherland, supra note 158, at 8 (same). Sutherland may also have relied on Joseph Story’s Commentaries to reach this conclusion. Story quoted the exact same Hamilton passage in support of a theory of resulting (or incidental) powers and identified the power to acquire territories and enter into agreements that are not constitutional treaties as examples of such power. See Joseph Story, Commentaries on the Constitution of the United States § 1256 (4th ed. 1873). Likewise, Story’s discussion of the constitutionality of embargoes discusses the power to expel aliens. See id. §§ 1289–93. Every power cited in Curtiss-Wright as outside the grant of enumerated powers can be found in these sections of Story’s Commentaries. Jones v. United States, 137 U.S. 202 (1890). 79 U.S. 457, 535 (1871). Sutherland, supra note 165, at 56 (quoting Legal Tender Cases, 79 U.S. at 535). For discussion of Jones and the Legal Tender Cases, see Chapter 4, pp. 152–54. For a discussion of McCulloch as a source for Congress’s foreign affairs power, see Ramsey, supra note 174, at 204–08. For a discussion of “resulting” powers in foreign affairs, see Henkin, supra note 176, at 15, 328. Although the Court used customary international law during this period primarily to augment government power, the Court frequently invoked treaties in statutory interpretation cases to restrain the exercise of government power. See Chapter 6, pp. 208–09.

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In the context of statutory interpretation, the period was marked by change. Strict territoriality grounded in sovereignty gave way to a liberal “effects” doctrine applying conflict of laws principles. This doctrine focused on congressional intent and the protection of legitimate state interests over and above deference to foreign sovereign authority. As the United States became an economic superpower, it increasingly had interests to protect abroad, leading to assertions of jurisdiction over foreign conduct and parties. In the constitutional arena, the period saw a mixture of change and continuity. The nation’s expansion beyond the continental United States raised difficult issues concerning the extraterritorial application of the Constitution. Acquiring overseas territories occasioned the Supreme Court’s convoluted and novel holding that these possessions were foreign territories but not foreign countries. The result was the new doctrine of “unincorporated territories,” in which the United States controlled foreign lands without many of the traditional constitutional limits. The Court’s interpretation of federal foreign affairs powers also reflected both continuity and change. Its interpretation of war powers in light of international law was nothing new,187 and its understanding of “inherent powers” borrowed heavily from the past – particularly Jones188 and the Legal Tender Cases.189 But Curtiss-Wright190 departed sharply from earlier cases by suggesting that foreign affairs powers vested solely in the executive branch. It also may have departed from the past to the extent one reads it as a case recognizing extra-constitutional authority derived from the law of nations as opposed to express, implied, or resulting powers of the founding document. With respect to constitutional civil liberties, the incorporation debates echoed the earlier “natural law” roots of constitutional interpretation. The question in Twining191 and Palko192 of whether provisions of the Bill of Rights applied to the several States became a quest for immutable principles of justice. Finally, while the Court borrowed from the past to resolve questions of incorporation, it also boldly embraced the future with the constitutional pragmatism of Muller v. Oregon.193 The Court’s warm reception of comparative experiences outlined in the Brandeis Brief signaled a future wave of constitutional adjudication grounded in social science rather than philosophy.

187 188 189 190 191 192 193

See Chapter 1, pp. 34–35, 40–41; Chapter 4, pp. 142–43. Jones v. United States, 137 U.S. 202 (1890). 79 U.S. 457 (1871). United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Twining v. New Jersey, 211 U.S. 78 (1908). Palko v. Connecticut, 302 U.S. 319 (1937). 208 U.S. 412, 420 (1908).

9 Varieties and Complexities of Doctrinal Change: Historical Commentary, 1901–1945 Edward A. Purcell, Jr.∗

The preceding three fine chapters in Part III not only advance our understanding of international law developments in the United States but also suggest the challenges that confront scholars in the field. Although focused on the Supreme Court, they nonetheless suggest the sprawling scope of their subject and the complex interrelationships – institutional, intellectual, cultural, economic, and political – that often entangle and perplex both legal and historical analysis. By carefully identifying central issues and tracing major developments, the chapters illuminate the past and suggest important directions for future scholarship. This review chapter proceeds in four parts. The first three examine the contributions of the chapters in this section, while the fourth explores three basic themes that run through much of the book. Those themes are hardly the only ones that merit discussion, but each seems central to the history of international law in the late nineteenth and early twentieth centuries.

I. The Law of Treaties Professor Michael Van Alstine’s essay introduces the period from 1901 to 1945 as one of paradox. Although vast social and political forces “propelled a substantial change in the domestic law,” he explains, the law of treaties was marked “not by headstrong change, but rather by a sense of continuity, consolidation, and completion.” While the numbers and types of treaties expanded rapidly in the early twentieth century, the Court “repeatedly reaffirmed the foundational principles of treaty law,” including the duty of courts to apply treaties as controlling law, the “last-in-time” rule, the law of territorial acquisition, and the right of the President to determine the nation’s treaty partners.1 The period’s “most distinctive feature” was “the Court’s distillation of a largely complete and broadly coherent system of treaty interpretation.” The essential elements ∗

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Joseph Solomon Distinguished Professor, New York Law School. The author wishes to thank New York Law School students Stephanie Gibbs, Jared Kagan, Sarah Mirsky, and Ann Young for their invaluable assistance and Michael McCarthy of the New York Law School Library for his help in tracking down hard-to-find source materials. Chapter 6, pp. 192–93.

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of that system were “a purposive approach” to interpretation intended “to advance amicable relations” with the nation’s treaty partners and a “presumption in favor of a liberal recognition of individual rights secured by treaties.”2 The Court established the law of contracts as interpreted in international law as its “fundamental model for treaty interpretation,” laid firm foundations for “three of the established pillars of modern treaty interpretation,” and developed other doctrines to implement its “substantive preference for enlarging individual treaty rights.”3 Conversely, the Court gave little attention – and less effect – to the distinction between treaties that were “self-executing” and those that required congressional action to give them domestic effect,4 and it saw relatively little need to defer to the other branches of government in interpreting treaties. To the Congress, it gave no deference, although it recognized the Senate’s power to ratify treaties subject to binding reservations as well as Congress’s power to alter or abrogate treaties.5 To the executive branch, it gave only limited deference, and then not to its legal opinions but only to its actual and established practices in implementing treaty provisions.6 Most notably, Professor Van Alstine finds continuity in the Court’s decision in Missouri v. Holland,7 the period’s “most famous treaty case.” Although Justice Oliver Wendell Holmes, Jr.’s opinion seemed to give the treaty power an almost unlimited scope, Van Alstine argues that it “actually plowed very little new constitutional ground.”8 Geofroy v. Riggs9 in 1890 “had already staked out a nearly unlimited substantive scope for the treaty power,” and Neely v. Henkel10 in 1901 had held that Congress could pass substantive legislation on the basis of any valid treaty.11 While Professor Van Alstine uses Missouri v. Holland to highlight his continuity thesis, his claim may be overstated. First, the precedents he cites are distinguishable on the ground that they dealt with relatively traditional and inherently “international” affairs. Geofroy addressed the claims of French citizens residing in France to inherit property located in the District of Columbia, while Neely dealt with Congress’s power to extradite individuals to Cuba. Missouri v. Holland, in contrast, addressed the control of migratory birds found within the United States, a subject that had commonly been considered a “local” matter within the police power of the States.12 Second, the precedents Van 2

3 4 5 6

7 8 9 10 11 12

Id., pp. 193–94. Professor Duncan Hollis suggests the Court neither enforced individual treaty rights as consistently in the earlier period nor employed such a consistent interpretive method. See Chapter 2, pp. 66–72, 80–85. Chapter 6, pp. 209–10. Id., pp. 202–04. Professor Hollis supports Van Alstine’s continuity thesis on this point. See Chapter 2, pp. 208–12. Chapter 6, 206–08. In contrast, Professor Hollis argues that the Court gave considerable deference to congressional interpretations of treaties during the 1860–1900 period. See Chapter 2, pp. 83–84. Chapter 6, 217–18. Chapter 2 suggests that the Court began to give some deference to the President in the late nineteenth century. See Chapter 2, pp. 84–85. In contrast, the Court gave “zero deference” to the Executive in the early nineteenth century. David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. L. 497, 499 (2007). 252 U.S. 416 (1920). Chapter 6, p. 199. 133 U.S. 258 (1890). 180 U.S. 109 (1901). Chapter 6, pp. 198, 200. See G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1, 67 (1999).

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Alstine cites were, with one hardly relevant exception,13 all handed down after 1890. Thus, they tell us little about Missouri v. Holland’s continuity with the treaty law of most of the nineteenth century.14 Third, Van Alstine may give insufficient weight to the broader importance of Holmes’s frequently cited language describing the Constitution as an “organism” whose meaning properly evolves with the nation’s development.15 By itself, that language gave the Court’s opinion a deep resonance that carried far beyond the realm of treaty law. Moreover, as Professor Van Alstine himself points out, there was something new about Missouri v. Holland. Challenging the statute based on the treaty, Missouri argued that Congress could not use the treaty power as a basis for legislation that invaded the rights of the States under the Tenth Amendment.16 In response, the Court ruled that the amendment was irrelevant because the treaty power under Article II, Section 2, was a legislative power “delegated expressly” to the national government.17 Together with its holding that the treaty power authorized the federal government to regulate migratory birds, a traditionally local matter, the Court’s treatment of the Tenth Amendment laid to rest a longstanding States’ rights claim and constituted a notable break with the past. As G. Edward White has argued, Missouri v. Holland was a critical part of the “transformation” in the constitutional law of foreign relations that occurred between the late nineteenth century and the 1930s.18 Finally, the period witnessed the expansion and escalating use of sole executive agreements, a development that Professor Van Alstine identifies as the period’s “starkest example of change,” one that was “perhaps even revolutionary.”19 United States v. CurtissWright Export Corp.20 claimed far-reaching foreign relations powers for the President in language suggesting that those powers were virtually unbounded, and United States v. Belmont21 and United States v. Pink22 seemed “to hold that an executive agreement may 13

14 15 16

17 18 19

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The exception, American Insurance Co. v. 356 Bales of Cotton, 26 U.S. 511 (1828), affirmed only that the United States could acquire territory by way of treaty, a far narrower and less controversial holding than the one in Missouri v. Holland. Accord Chapter 2, pp. 85–87. Chapter 6, p. 201 (citing Holland, 252 U.S. at 433). Professor Van Alstine underscores the importance of Missouri v. Holland by noting that the States’ rights argument Missouri advanced had its “foundation” in Geofroy v. Riggs, 133 U.S. at 267 – the very case he identifies as having established a “nearly unlimited” treaty power. Chapter 6, p. 198. In fact, the scope of the treaty power was hotly contested in the early twentieth century. See, e.g., Henry St. George Tucker, Limitations on the Treaty-Making Power Under the Constitution of the United States 140–41 (1915). See generally David M. Golove, Treaty Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1238–57 (2000). 252 U.S. at 432. See White, supra note 12, at 72–73. For a different view supporting Van Alstine’s claim of continuity, see Charles A. Lofgren, Missouri v. Holland in Historical Perspective, 1975 Sup. Ct. Rev. 77, 102–03. Chapter 6, p. 218; accord White, supra note 12, at 146; see also Evan Criddle, The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 Va. J. Int’l L. 431, 467–73 (2004) (arguing that strong deference to the President in treaty interpretation developed in the 1920s and 1930s). The shift in the balance between treaties and executive agreements (with or without congressional approval) began in the half-century before World War II when the nation entered 524 treaties and 917 executive agreements. Oona Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236, 1287 (2008). 299 U.S. 304 (1936). 301 U.S. 324 (1937). 315 U.S. 203 (1942).

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preempt any and all state laws by presidential fiat.”23 Together, he concludes, those cases created “a seemingly unlimited field for unilateral executive control over our country’s foreign affairs.”24 While Professor Van Alstine’s continuity thesis requires qualification, it serves nicely to highlight another fundamental point he makes: that far more substantial changes in treaty law came in the century’s second half. Then, the Court’s commitment to both a “purposive approach” to treaty interpretation and a “liberal recognition” of individual treaty rights largely disappeared,25 while the Justices showed increasing deference to the political branches and turned the concept of “non-self-executing” treaties into a major obstacle to judicial enforcement of treaty obligations. The nature and sweep of those later changes, Van Alstine implies, dwarfed earlier changes and consequently made the century’s first half seem, relatively speaking, a period of continuity. Perhaps Professor Van Alstine’s most important contribution is to illustrate the way that the meaning and significance of constitutional principles change over time. During the nineteenth century the principle of separation of powers was understood to mean that the President and two-thirds of the Senate – the constitutionally defined “lawmaking” authority for treaties – had the power to “make” treaties, while the Court had the quintessential judicial function of construing and applying those treaties. Recognizing its “special responsibility” under the Supremacy Clause to ensure that treaties were honored, the Court served as “a faithful constitutional agent in the enforcement of international commitments in domestic law.”26 During the late nineteenth and twentieth centuries, however, massive changes in the United States and its role in an internationalizing world brought pressures that gradually altered the operation of those principles.27 The power of the President and the Senate to “make” treaties remained, but it was employed less and less frequently as alternate methods of effecting international agreements proved quicker and easier to use. Gradually, the Court accepted the principle that the President together with simple majorities in both Houses of Congress could make international agreements that were the legal equivalents of treaties and, further, that the President alone could also make international agreements that were, at least in many ways, the legal equivalents of treaties. In addition, mostly after World War II, the Court changed its own role in two ways. First, it came to accept the idea that many treaties were, for one reason or another, “non-self-executing” and hence that it should not enforce them without further authorization from Congress. Second, it came to accept the idea that executive branch legal opinions, even if unprecedented or unmoored in prior practice, might properly influence or perhaps even determine how the Court should construe and apply treaties and other international agreements.28 Together, those changes meant that 23 24 25

26 27 28

Chapter 6, p. 223. More than sixty years after Pink the Court decided Medellin v. Texas, 552 U.S. 491 (2008), which casts doubt on the more aggressive interpretations of Pink. Chapter 6, p. 224. Professor Hollis supports Van Alstine’s point about continuity on this issue, suggesting that in the earlier period there was “a presumption in favor of treaties as federal law vis-à-vis individuals unless something in the treaty or a federal statute suggested otherwise.” Chapter 2, p. 67. But see id., pp. 69–71 (discussing exceptions that limited the “presumption”). Chapter 6, p. 202; see also Chapter 1, pp. 13–23; Chapter 4, pp. 133–41. The impact of those changed conditions is a major theme in Professor Paul Stephan’s chapter. See Chapter 10. Id., pp. 322–26 (increased reluctance to enforce treaties without congressional legislation); id., pp. 335–38 (increased deference to views of Executive).


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the Court’s enforcement of treaties became more dependent on Congress and, to some uncertain but growing extent, on the President as well. Those developments significantly realigned the relationships among the federal branches. The President was greatly enhanced; the House granted new authority; the Senate partially eclipsed; the Court more narrowly constrained; and Congress as a whole strengthened with respect to the Court but weakened with respect to the President. The principle of separation of powers remained as a fundamental constitutional concept, but its meaning and operation had been substantially altered.

II. Customary International Law In contrast to Van Alstine, Professor Michael Ramsey stresses change, identifying not only a variety of shifts in the Court’s jurisprudence but also a “revolution” in its understanding of the nature of law that came with Erie Railroad Co. v. Tompkins in 1938.29 Indeed, he maintains, the “story of the Supreme Court and international law in the early twentieth century” is “to a large extent a story about Erie.”30 Accordingly, he breaks his chapter into pre- and post-Erie eras. Professor Ramsey organizes the pre-Erie section around three themes: the sharpening conflict over the doctrine of “general” law, the waning role of customary international law as a direct source of legal rules, and a decline in “international law positivism.” Examining the first trend, he notes that customary international law became increasingly understood as a component of “general” law and that its merger into the latter eventually brought the most striking doctrinal results in admiralty suits and suits between States.31 Accordingly, he focuses on the Court’s critical decisions in Southern Pacific Co. v. Jensen32 and Kansas v. Colorado33 to show how the Justices used the resulting blend to create a new and specifically “federal” law in those two areas. Outside admiralty and interstate disputes, however, customary international law remained an imprecisely defined element of “general” law and, consequently, not authentically “federal” within the meaning of either the Supremacy Clause or federal jurisdictional statutes. The other two themes in the first section, the declining influence of customary international law and its positivist method, are less central to Professor Ramsey’s broader argument about Erie. In part, their decline was due to the proliferation of statutes and treaties that displaced many customary international law rules and to the de facto disappearance of many traditional customary international law staples, such as cases involving privateers and prizes. The decline was also caused by the merging of customary international law into “general” law. The merger obscured the distinctive role of customary international law while making its positivist method unnecessary.34 Because “general” law was based not on state consent and practice but on principles of reason and morality, the merger of customary international law into “general” law meant that American courts would look to those principles, not to state behavior, to determine customary international 29 30 31 32 33 34

304 U.S. 64 (1938). Chapter 7, p. 225. Id., pp. 227–34. 244 U.S. 205 (1917). 185 U.S. 125 (1902) (announcing, inter alia, that the Court would consult international law in deciding merits); 206 U.S. 46 (1907) (deciding merits). Chapter 7, pp. 235–38.

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law’s content.35 Finally, Ramsey suggests, the decline of customary international law was caused by the partial constitutionalization of two of its important subfields: conflict of laws and personal jurisdiction over nonresidents and noncitizens.36 By extending constitutional mandates into those areas, the Court further narrowed the role that customary international law would play in its jurisprudence. Rounding out the first section, Professor Ramsey addresses the relationship between international law and American foreign policy. While the period’s cases were for the most part “not momentous,”37 he identifies one major exception – Curtiss-Wright – a dubiously reasoned case38 that would become “a standard citation” for those who sought to justify an “effectively unconstrained executive foreign affairs power.”39 Ramsey, however, points out that the Court’s opinion in Curtiss-Wright not only contained language supporting such an “unconstrained” view of presidential power but also included language pushing in the opposite direction. The opinion explicitly states that the President is limited “by treaties, international understandings and compacts, and the principles of international law.”40 Thus, even with its broadest reading, Ramsey suggests, the case does not authorize unlimited executive power over foreign affairs. Rather, it proposes “a tradeoff”: executive power is freed from constitutional fetters but cabined by international law.41 Unfortunately, if Curtiss-Wright were accepted on that theory, the tradeoff would likely impose few if any significant restraints on the President. It would squarely put a question that has become increasingly important during the twentieth century: does the President have the right to violate international law? It seems highly doubtful that a future Court would ever, in a significant showdown, give anything but an affirmative answer to that question.42 If the President is to be constrained by law in the conduct of foreign affairs, it seems likely that only domestic authorities – constitutional barriers or explicit congressional statutes – would serve.43 In the second part of his chapter Professor Ramsey addresses Erie and the problem it generated for customary international law. Overruling a century of the Court’s jurisprudence, Justice Louis D. Brandeis’s majority opinion held that there was no such thing as “general” law and announced that the Court’s prior decisions enforcing such law represented “an unconstitutional assumption of powers by the courts of the United States.”44 35

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Professor David Bederman notes that in discussing customary international law issues the Court was often “vague,” referred to “general” legal sources and principles, and used little direct evidence of actual state practice. Chapter 3, pp. 103–12. Its treatment of customary international law as “general” law, he concludes, was not consistent. Id., pp. 114–17. Chapter 7, pp. 235–36. Id., p. 240. See, e.g., Charles A. Lofgren, United States v. Curtiss-Wright Export Corporation: An Historical Reassessment, 83 Yale L.J. 1, 32 (1973) (historical basis is “shockingly inaccurate”); David M. Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 Yale L.J. 467, 497 (1946) (makes “a shambles” of the idea of constitutional government). Chapter 7, p. 243. Id., p. 242 (citing Curtiss-Wright, 299 U.S. at 318). Id. Accord Chapter 3, pp. 120–22. On the challenge of constraining executive foreign relations powers by law, see, e.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb: Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008). 304 U.S. 64, 79 (1938).


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It declared that the word “laws” included only those rules – whether made by judges or legislatures – that a sovereign power would enforce, and it announced a basic constitutional principle: “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”45 Thus, Erie implicitly posed a major question: if “general” law does not properly exist and all legitimate domestic law is either “state” or “federal,” what is customary international law? In a valuable summary, Professor Ramsey evaluates the three basic approaches to the problem that scholars and judges have offered, noting strengths and weaknesses in each.46 In the years after World War II most commentators regarded Erie as essentially irrelevant to issues of international law and accepted the proposition that customary international law was a form of federal law.47 Recent critics, however, have advanced alternative positions based on broader readings of Erie. Some argue that, because customary international law is authorized by neither the Constitution nor congressional statutes, Erie means that customary international law cannot be federal law and must therefore be state law.48 Others, relying on the federal nature of foreign relations law and the Court’s acceptance of a “special” federal common law, argue that Erie means that customary international law may be federal law in some areas but state law in others.49 Ramsey concludes quite accurately that none of the proposed solutions “was wholly embraced, nor wholly rejected, in Erie’s time” and that none is “wholly satisfactory.”50 The fundamental problem, as Professor William Dodge writes later in this volume in Chapter 11, is that Erie constituted such a profound jurisprudential change that many questions involving its significance for customary international law “would have made no sense before 1938.”51 45 46

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Id. at 78. Professor Bederman points out that the Court’s decisions in the late nineteenth century were “ambiguous in answering the question whether a norm of customary international law or general maritime law was one of federal law for purposes of the Constitution’s Article III (conveying federal jurisdiction) or Article VI (preempting state law).” Chapter 3, p. 117. He concludes that the Court established that customary international law was not “federal” law for statutory jurisdictional purposes but that its “substantive status” as federal or state law nonetheless “remained indeterminate.” Id., p. 119. See, e.g., Restatement (Second) of the Foreign Relations Law of the United States § 3 Reporters’ Note 2 (1965); Restatement (Third) of the Foreign Relations Law of the United States § 111 Reporters’ Note 3 (1987). See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997); Curtis A. Bradley, The Status of Customary International Law in U.S. Courts Before and After Erie, 26 Denv. J. Int’l L. & Pol’y 807 (1998). For responses arguing that customary international law is federal law, see Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997). E.g., Ernest A. Young, Sorting out the Debate over Customary International Law, 42 Va. J. Int’l L. 365 (2002); G. Edward White, A Customary International Law of Torts, 41 Val. U. L. Rev. 755 (2006); William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12 Tulsa J. Comp. & Int’l L. 87 (2004). Bradley and Goldsmith note that their interpretation would leave some areas of foreign relations law unaffected. See Bradley & Goldsmith, supra note 48, at 870–75. Chapter 7, p. 254. Chapter 11, p. 375; see also Part V.B.

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Considering Erie’s relevance for customary international law, four general conclusions seem warranted. First, then-Professor Philip C. Jessup was almost certainly right when he opined the year after Erie came down that “Mr. Justice Brandeis was surely not thinking of international law” when he wrote his opinion.52 Neither the specific facts of the case, which involved a single individual injured by a passing train in a small Pennsylvania town, nor the broader social, political, and constitutional factors that concerned Brandeis and the Court at the time had any direct connection with customary international law. Indeed, as Ramsey points out, when the Court decided Erie, it “had not decided a pure direct-application international law case for over twenty years.”53 The Erie/customary international law problem, in other words, was apparently entirely absent from the Justices’ minds. Textual evidence supports that conclusion, for the Court’s constitutional reasoning contained a glaring and otherwise inexplicable error. Announcing that state law controlled except “in matters governed by the Federal Constitution or by acts of Congress,” the opinion left out treaties, a category of law that the Constitution explicitly makes “supreme.”54 Neither Brandeis nor any other Justice would have denied that status. Indeed, Brandeis had joined the Court’s opinion in Missouri v. Holland, which recognized the sweeping scope of the federal treaty power. Thus, Erie’s omission of treaties could only have been due to inadvertence, to the fact that none of the Justices was thinking about the opinion’s relevance for international law issues.55 Second, and equally obvious from the opinion’s text, Erie was focused on four other quite different problems. One was the doctrinal confusion that the vague idea of “general” law caused and the “well of uncertainties”56 it created about when and under what circumstances federal courts would follow decisions of state courts. A second was the fact that “general” law combined with federal jurisdictional and procedural rules to spur forum shopping and aggressive litigation tactics that burdened the courts and created inefficiencies in the legal system. A third was the unfairness that those aggressive litigation tactics imposed on relatively weak individual claimants, especially when they faced sophisticated corporate adversaries able to exploit their systemic advantages. The last, and most fundamental, was that “general” law had developed into a doctrine that allowed the federal courts to create rules of non-constitutional national law that were “confessedly” beyond the power of Congress to alter,57 a doctrine that contradicted the fundamental

52

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Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int’l L. 740, 743 (1939). Indicative of the profession’s inattention to the Erie/customary international law question at the time, Jessup’s article was almost alone in discussing the problem, and it was exceptionally brief, covering less than three full printed pages. Chapter 7, p. 246. The Court itself subsequently distinguished Erie on the ground that Jessup suggested when it ruled that the act of state doctrine “must be treated exclusively as an aspect of federal law.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964); see Chapter 11, pp. 262–63. U.S. Const. art. VI, cl. 2. Although Brandeis had strong international interests, especially in Jewish affairs in Palestine and in the events surrounding World War I and the coming of World War II, his professional focus remained on domestic issues. Indeed, his Zionism was largely shaped by his commitment to American ideals and Progressive values. Melvin I. Urofsky, Louis D. Brandeis: A Life 405–09 (2009). “Brandeis was too deeply immersed in American domestic problems to give foreign affairs much attention.” Alpheus Thomas Mason, Brandeis: A Free Man’s Life 438 (1946). 304 U.S. 64, 74 (1938). Id. at 72.


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constitutional principle of legislative primacy.58 No hint of international law figured in Erie’s discussion of any of those concerns.59 Third, had Brandeis actually considered the customary international law question, his constitutional jurisprudence suggests that he would likely have denied from the start that it required an “either/or” solution. As a general matter, Brandeis sought to give full scope to federal authority while ensuring that the States retained an important role when federal control was not necessary. However, when national action was called for, Brandeis had no qualms about upholding federal authority.60 In Commerce Clause cases, for example, he sought “to treat the constitutional power of interstate commerce as very broad” but also “to treat acts of Congress as not invading State power unless it clearly appeared that the federal power was intended to be exercised exclusively.”61 Similarly, he joined Justice George Sutherland’s opinion in Curtiss-Wright extending presidential power in the realm of foreign affairs, but the next year he refused to join Sutherland’s follow-up opinion in Belmont that upheld a sole executive agreement and contained sweeping dicta about presidential power to override state law.62 Instead, Brandeis joined Justice Harlan F. Stone’s concurrence, which identified narrower grounds for the decision and emphasized that state law remained controlling in areas related to the executive agreement.63 Both the admiralty and interstate dispute cases support the same conclusion. In the former, Brandeis had no problem, as a general matter, with national authority over maritime law. His objections to Jensen were based on quite different grounds. He thought that the Court unnecessarily set aside state workers’ compensation laws that, in his mind, were of the greatest social importance and that its decision was based on an alleged need for “uniformity” in the absence of reasons why such uniformity was necessary. His objections were further strengthened when the Court used Jensen to void two subsequent congressional statutes that authorized the application of state workers’ compensation laws in admiralty.64 Similarly, and for obvious practical reasons, Brandeis had no objection to the assertion of national authority over disputes between States. His objection to the law in that area was based, instead, on his opposition to 58 59

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Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: ERIE , the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America chs. 6 and 7 (2000). Professor Ramsey suggests that Skiriotes v. Florida, 313 U.S. 69 (1941), provides further evidence that “the Court was not thinking clearly about Erie’s relationship to international law.” Chapter 7, p. 255. The Court’s inattention was wholly understandable, for it had more than enough difficulty struggling to craft a coherent “Erie doctrine” in areas that the case directly implicated. Purcell, supra note 58, at 201–28, 246–55, 276–78, 287–95. Purcell, supra note 58, at 150–53, 182–85. Letter from Louis D. Brandeis to Felix Frankfurter (June 17, 1923), in 5 Letters of Louis Brandeis 78 (Melvin I. Urofsky & David W. Levy eds., 1978); see, e.g., Ark. R.R. Comm’n v. Chicago, Rock Island & Pac. R.R. Co., 274 U.S. 597 (1927) (Brandeis, J.); N.Y. Cent. R.R. v. Winfield, 244 U.S. 147, 154 (1917) (Brandeis, J., dissenting). Brandeis also sought to limit presidential power in Myers v. United States, 272 U.S. 52, 240 (1926) (Brandeis, J., dissenting), where, framing the issue far more narrowly than did the majority opinion, he would have upheld congressional power to limit the President’s authority to remove federal officers. Nine years later he joined the Court in distinguishing Myers and restricting the President’s removal power. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). 301 U.S. 324, 333 (1937) (Stone, J., concurring, joined by Brandeis and Cardozo, JJ.). Purcell, supra note 58, at 175–77. Jensen was also less offensive to Brandeis than was the broader “general” law, for in admiralty the Court recognized the authority of Congress to override at least some parts of the judge-made maritime law. Id. at 177.

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the sweeping constitutional theory that Justice David J. Brewer set out in Kansas v. Colorado, the leading opinion in the field.65 Brewer had used the Tenth Amendment to expand the federal judicial power beyond the reach of the legislative powers of both Congress and the States, and Brandeis responded to Brewer in Hinderlider v. La Plata River & Cherry Creek Ditch Co.,66 handed down the same day the Court announced its opinion in Erie. There, Brandeis readily approved federal authority over interstate disputes but explicitly rejected Brewer’s theory of sweeping and exclusive federal judicial power.67 Thus, had Brandeis thought about the customary international law question, it seems likely that he would have denied that Erie required a single comprehensive answer and would have urged the Court to consider instead the practical reasons for categorizing any particular element of customary international law as either “federal” or “state.” He would likely have scrutinized the contexts in which each issue appeared, examined the various interests at stake, and estimated the likely consequences of applying one or the other label. He would, in other words, have searched for a socially convenient and institutionally balanced resolution for each different issue presented. Finally, insofar as the Court’s opinion in Erie offers any authentically rooted guidance on the customary international law problem, that guidance should come not from the opinion’s terse language that can be read to suggest an “either/or” requirement but rather from the four substantive concerns that actually shaped its analysis.68 Erie directs us to consider which categorization of customary international law would be more likely to create legal uncertainties, which more likely to produce systemic inefficiencies, which to disadvantage ordinary individuals litigating against resource-laden adversaries,69 and which to honor relevant legislative policies and ensure ultimate legislative authority.70 Examining the Erie/customary international law problem by considering those four concerns would hardly resolve every relevant issue, but it would at least shape an approach that was substantially related to the actual concerns and reasoning that underlay the Court’s opinion. That seems preferable to ignoring the fact that Erie gave no heed to customary international law issues and arbitrarily elevating it into an authority that compels a 65

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During the 1930s the Court cited Brewer’s opinion a dozen times, sometimes in cases outside the area of interstate disputes, and relied on it to support the proposition that an “interstate common law” existed and that the Court could make law where neither Congress nor state legislatures could do so. See Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 163–64 (1935); Connecticut v. Massachusetts, 282 U.S. 660, 670–71 (1931). The Court also cited Brewer’s opinion in Carter v. Carter Coal Co., 298 U.S. 238, 293–94 (1936), where Brandeis dissented (along with Hughes, Stone, and Cardozo). 304 U.S. 92 (1938). Purcell, supra note 58, at 57–60, 186–190. For a different consideration of the “values” of Erie and the customary international law problem, see Young, supra note 49, at 394–404. The “social” aspect of Erie has been essentially lost, although it echoes faintly in the “inequitable administration of the law” language of Hanna v. Plumer, 380 U.S. 460, 468 (1965). It would seem to carry no weight with the contemporary Supreme Court. See Purcell, supra note 58, at 290–92, 296–97. For example, in Sandberg v. McDonald, 248 U.S. 185 (1918), the Court construed LaFollette’s Seaman’s Act, 38 Stat. 1164, narrowly to preclude a seaman’s recovery. The majority reasoned that Congress did not clearly intend a broader application of the statute that would contradict the territoriality principle. Id. at 195–96. Brandeis joined Justice Joseph McKenna’s dissent (along with Justices Holmes and John Clarke), which argued that congressional policy required giving the statute a broader application and that congressional policy should trump the principle of territoriality and other such international law considerations. Id. at 201–05.


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sweeping and categorical “either/or” answer to what is, after all, a historically incoherent question. Insofar as Erie created a meaningful problem for customary international law, it is not one of logically necessary categorization but of wise practical judgment.

III. International Law as an Interpretive Tool Professor Roger Alford also highlights changes that occurred during the period, but he sounds a distinctly different note in warning about the potential dangers of using international law as an interpretive tool. He wisely reminds us that international law – like most other legal sources – can be used to support a wide range of social and political policies. During the first half of the twentieth century, he stresses, international law did not concern itself with “human rights” but instead focused “exclusively” on matters of “external” sovereignty, that is, on the rights and powers of nations in dealing with other nations. That focus underwrote “an expansive understanding of sovereignty that imposes few limits on the exercise of government power.” Thus, he concludes, “the recurring theme during this period is that customary international law supports government action rather than curtails it.”71 With respect to statutory construction, Professor Alford identifies international law’s principal function as limiting the extraterritorial reach of federal law on the basis of its concept of sovereignty.72 His story of that function is one of decline. In 1909 Justice Holmes adopted a “strict” territorial theory of national sovereignty in American Banana Co. v. United Fruit Co.73 and ruled that federal statutes presumptively applied only inside American territory. Within only a few years, however, the Court began edging away from that doctrine, and in 1945 United States v. Aluminum Co. of America74 sounded its “death knell.”75 Ushering in an “effects doctrine,” Alcoa ruled that the presumption against extraterritoriality could readily be overcome by harm caused within the United States, the intent of Congress, or general concerns of international comity.76 Professor Alford’s emphasis on American Banana’s “strict” territoriality theory and its subsequent decline seems somewhat misleading. As Professors Thomas Lee and David Sloss show in Chapter 4, the territorial principle was well established by the mid-nineteenth century, although it recognized certain exceptions that Holmes himself acknowledged in his opinion.77 Similarly, as Professor Melissa Waters shows in Chapter 12, the Court continued to honor the territoriality principle after 1945, limiting the extraterritorial reach of U.S. laws in both maritime and non-maritime cases.78 Professor Paul Stephan, moreover, finds in Chapter 10 that in the later period the Court often used treaties to accomplish the same limiting result.79 Thus, territoriality was, and remained, a major principle in American jurisprudence both before and after American Banana, and 71 72 73 74 75 76 77

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Chapter 8, p. 257. Id., pp. 258–59. 213 U.S. 347 (1909). 148 F.2d 416 (2d Cir. 1945). Chapter 8, p. 265. Id., p. 269. See Am. Banana, 213 U.S. at 355–56. Professors Lee and Sloss note the importance of territoriality for certain constitutional issues, while Professor Bederman notes its importance in customary international law issues. See Chapter 4, pp. 148–52; Chapter 3, pp. 100–03. Chapter 12, pp. 381–93. Chapter 10, p. 330.

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the Court’s long-term practice was more nuanced than any theory of “strict” territoriality or any story of its straightforward decline would admit. Indeed, American Banana’s greatest long-term significance may lie elsewhere – not in its use of rigid ideas of sovereignty and territoriality but in its reliance on more flexible ideas of comity and conflict of laws principles in addressing questions of extraterritoriality.80 Intriguingly, Professor Alford suggests a plausible reason why the Court might have advanced such an ostensibly strict territorial theory in American Banana. Rather than being persuaded to adopt one of Holmes’s pet positivist ideas, the Justices may have seized on territoriality as a serviceable method of dealing with an awkward diplomatic problem. A “finding against United Fruit would cast judgment on sovereign malfeasance,” Alford comments, and adoption of strict territoriality may have reflected “the Court’s desire to avoid sitting in judgment on the acts of another sovereign.”81 Thus, American Banana’s seeming embrace of strict territoriality may have been little more than a tactical expedient.82 With respect to the Constitution, Professor Alford’s discussion is more complex and provocative. Examining four areas involving individual rights, he emphasizes the central role that the concept of sovereignty played and argues that international law served “to enhance government power.”83 In three of the four areas his argument is persuasive. First, the Court used the laws of war to restrict the constitutional rights of individuals, limiting the applicability of the Fifth Amendment in wartime and sanctioning harsh punitive measures that would otherwise violate the Constitution.84 Second, the Court drew on ideas of sovereignty in Curtiss-Wright to provide a new vision of constitutional authority that justified sweeping presidential power over foreign affairs and seemed to exclude Congress entirely from the area.85 However one might construe Curtiss-Wright, Alford suggests, international law provided a critical part of its reasoning and was used to justify a substantial expansion of presidential power.86 Third, considering the constitutional status of the territories the United States acquired at the end of the nineteenth century, the Insular Cases87 drew on international law to establish the nation’s right of possession and to explain the new distinction it drew between “incorporated” and “unincorporated” territories. The former were territories that were fully a part of the United States, while the latter 80

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Professor Alford suggests this last point. See Chapter 8, p. 260; see also Larry Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179, 186; William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101, 121–27 (1998). Chapter 8, p. 262. Professor Alford points out that Holmes subsequently joined a unanimous Court in “distinguishing” American Banana and giving the Sherman Antitrust Act extraterritorial application in United States v. Sisal Sales Corp., 274 U.S. 268 (1927). See Chapter 8, pp. 264–65. Chapter 8, p. 169. Id., pp. 275–78; accord Chapter 4, pp. 142–47. Chapter 8, pp. 279–83. Curtiss-Wright was written by Justice George Sutherland, who had been developing his theory of executive foreign affairs powers for two decades and who in 1918 termed it “an entirely new theory of the Constitution,” id., p. 280 (quoting Sutherland) – a revealing statement from the Justice who would subsequently write his views into law while defending them on historical grounds. As discussed supra p. 290, Professor Ramsey offers a somewhat different interpretation. See Chapter 7, p. 242. There were more than two dozen so-called Insular Cases decided between 1901 and the 1920s. Among the key early decisions were Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904); and Rassmussen v. United States, 197 U.S. 516 (1905). See Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (2006).


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were merely external possessions that the United States controlled. In incorporated territories the Constitution applied fully, while in unincorporated territories it did not. Thus, the Insular Cases gave Congress plenary authority over the latter – subject only to vague and unspecified “fundamental” limitations “inherent” in principles of free government.88 Although Alford refers to the Court’s territorial “incorporation” doctrine as “natural law constitutionalism,”89 it might more appropriately be termed “managerial constitutionalism.” That is, while the Insular Cases employed a vague language of unspecified “fundamental” rights, the distinction between “incorporated” and “unincorporated” territories served an immediate and intensely practical administrative function. It drew a bright line dividing the nation’s territorial possessions based on their de facto political “desirability” as potential new States, an instrumentalist divide that was strategically shrewd in both military and economic terms and highly popular in culturally and racially exclusionary terms.90 The new doctrine of “unincorporated” territories authorized the political branches to administer the disfavored new possessions in whatever manner they wished, unencumbered by significant constitutional restrictions.91 It maintained the Court’s position as the ultimate constitutional authority while, in practice, allowing popular opinion to have its sway and the political branches to exercise nearly unhampered administrative control. While developments in those three areas support Professor Alford’s argument that international law served to strengthen government power and weaken the rights of individuals, the fourth area he discusses does not fit that pattern quite so snugly. In a particularly insightful section, he emphasizes the often ignored international aspects of two familiar developments: acceptance of the “Brandeis Brief” and debate over the “incorporation” of the Bill of Rights into the Due Process Clause. In both, Alford points out, the Court consulted foreign sources by adopting methods of constitutional comparativism.92 The Brandeis Brief involved not just social facts but social facts drawn from sixty years of experience “in the leading countries of Europe.”93 Similarly, modern Fourteenth Amendment incorporation doctrine was rooted in the idea that due process embodied “certain immutable principles of justice” and that its content was to be found in “the jurisprudence of civilized and free countries.”94 Those developments, however, do not give unalloyed support to Professor Alford’s broader thesis. True, in both areas “constitutional comparativism” was used to strengthen government and limit individual rights. The Brandeis Brief justified expanded state power and restricted employers’ rights, while the jurisprudence of “civilized and free countries” served as a norm that initially blocked incorporation and cabined the meaning of due process. At the same time, however, the former was also used to create important new legal rights and remedies for women and then for workers generally, while the latter 88 89 90 91

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Chapter 8, p. 272 (quoting Downes, 182 U.S. at 290–91 (White, J., concurring)). Id. On the pervasive racism that urged sharp limits on American territorial annexations, see Eric T. L. Love, Race over Empire: Racism and U.S. Imperialism, 1865–1900 (2004). The distinction also avoided the potentially troublesome language of In re Ross, 140 U.S. 453, 464 (1891), which stated that the “Constitution can have no operation in another country.” The Insular Cases made it clear that an unincorporated territory, although not a “part” of the United States, was nonetheless officially a U.S. possession and not “another country.” Chapter 8, pp. 272–75. Id., p. 272 (quoting the Brief for the State of Oregon submitted by Louis D. Brandeis in Muller v. Oregon, 208 U.S. 412 (1908)). Id., pp. 273–74 (quoting Twining v. New Jersey, 211 U.S. 78, 100–01, 113 (1908)).

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eventually led to broadening views of individual rights and, beginning tentatively with the First Amendment in the 1920s, to the eventual, if selective, incorporation of most of the Bill of Rights. Professor Alford’s broader thesis should also be qualified in another respect. When the Court construed treaties during this period, it often did so to protect individual rights. As Professor Van Alstine tells us, the Court transformed its interpretative canon requiring liberal construction into a “formal presumption in favor of recognizing individual rights secured by treaties.”95 That presumption, the Court announced proudly in 1933, had been “consistently recognized and applied by this Court.”96 Professor Alford closes his discussion by noting its bearing on contemporary debates over the use of foreign sources in constitutional interpretation. The approaches adopted in the Brandeis Brief and the incorporation debate, which he terms “pragmatic empiricism and natural law constitutionalism,”97 evidence a judicial practice of consulting foreign sources in constitutional cases. Because they “are not rooted in constitutional text and permit free-range harvesting of international best practices,” they are “highly controversial methods for resolving constitutional questions.”98 Still, Alford suggests, together they provide the “most coherent arguments for reliance on foreign or international law in constitutional interpretation.”99 The two developments do provide clear historical precedents for such reliance, and they surely illustrate the complexity of American legal development. Even granted their precedential relevance, however, they are only analogies with highly contestable elements and implications. Thus, they would seem to offer little prescriptive authority even to those who believe that international law norms should be relevant to constitutional questions.100

IV. Three Central Themes The chapters in this book raise a wide range of issues that merit extended examination. Three seem particularly important for this period.

A. The Pervasiveness of Change One of the most striking features of the chapters is their emphasis on change in the Court’s international law jurisprudence. While the editors’ introductory chapter stresses continuity in the Court’s decisions from the late eighteenth century to the Civil War, the chapters covering later periods find considerably more change, not only in the 95 96

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Chapter 6, p. 213. Factor v. Laubenheimer, 290 U.S. 276, 293 (1933). Professor Van Alstine notes that the Court did not invariably enforce individual treaty rights. See Chapter 6, pp. 214–15. Professor Hollis also argues that in the late nineteenth century the Court frequently enforced certain kinds of individual treaty rights although it refused to enforce others. See Chapter 2, pp. 66–72. After 1945, Van Alstine further suggests, the Court became increasingly reluctant to enforce individual treaty rights, a proposition with which Professor Stephan seems to agree. See Chapter 6, p. 215; Chapter 10, pp. 339–46. Chapter 8, p. 275. Id. Id. For an elaborate treatment of the role of foreign and international law in constitutional interpretation, see Vicki C. Jackson, Constitutional Engagement in a Transnational Era (2010).


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Court’s doctrines and interpretive techniques but also in its attitude toward international law and its own institutional role.101 Professor Hollis terms the decades after the Civil War “a period in flux,”102 while Professor Bederman sees them bringing “a real revolution in understanding the nature of customary international law and its role in U.S. law.”103 The disappearance of staple international law cases involving pirates, prizes, and privateers reoriented the Court’s docket, drastically shrank its opportunities to address customary international law issues, and accelerated its intensifying focus on domestic law sources, especially the Constitution. Further, the expansion of interstate and international commerce and the rise of the regulatory state forced to the fore complex new problems involving personal jurisdiction, conflict of laws, and the extraterritorial reach of both state and federal laws. The conditions and challenges that shaped the eighteenth and nineteenth centuries differed so substantially from those that marked the twentieth century, Professor Stephan concludes, the Court’s treaty decisions in the later period in effect changed “what it meant to be the law of the land.”104 Perhaps the most fundamental change the chapters chart is the long-recognized shift in power in foreign relations law from Congress and the courts to the executive branch.105 Thus, the chapters make it clear that current foreign relations law does not represent “original” or “traditional” constitutional doctrine. Before 1860, “the Court gave no deference to the executive branch’s position on treaty interpretation questions,” the editors note, and the U.S. government prevailed in only three of the Court’s nineteen treaty cases in which it was a party during that early period.106 After 1860, as both Professors Hollis and Van Alstine show, the Court began to give increasing deference to the President,107 and the latter author also identifies a pivotal change in the grounds on which the Court based its deference. Into the early decades of the twentieth century, Van Alstine explains, “the relevant interpretive evidence [for construing treaties] was the actual, practical ‘construction’ of the treaty through the past actions of the executive branch,” and “[d]ecisions from the first half of the twentieth century did not accord deference to the mere legal opinion of the executive branch on the proper interpretation of a treaty.”108 By the late twentieth century, however, the Court had “strayed far” from its original doctrines and was giving “great weight” to executive branch opinions.109 Obviously, deferring to executive “opinions,” as opposed to deferring to established executive branch practices worked out over longer periods of time, served to expand presidential power substantially by allowing new administrations more easily to overturn settled interpretations and practices. 101

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Even though the Court frequently referred to the Charming Betsy canon, for example, it applied the principle differently at different times and sometimes simply ignored it. See Chapter 2, pp. 73–76; Chapter 4, pp. 130–41; Chapter 12, pp. 393–401. Chapter 2, p. 65. Chapter 3, p. 90. Chapter 10, p. 352. The Constitution gives Congress and the Senate substantial power over foreign relations, and as late as the 1930s courts were commonly involved in deciding issues related to the nation’s foreign affairs. See, e.g., Louis L. Jaffe, Judicial Aspects of Foreign Relations: In Particular of the Recognition of Foreign Powers (1933). Chapter 1, p. 17. Moreover, they continue, the “executive branch agreed that the judiciary had an independent responsibility to decide treaty interpretation questions.” Id. Chapter 2, pp. 84–84; Chapter 6, pp. 217–18. Chapter 6, p. 217. Id.

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All the chapters agree, moreover, that the Court’s decisions in Curtiss-Wright and Belmont represented major turning points. The former seemed to free the President from constitutional restraints in foreign relations law, and the latter seemed to elevate sole executive agreements to the constitutional status of Senate-ratified treaties. Combined with other changes the authors describe, the chapters make clear that in the twentieth century the power of the President expanded enormously in foreign relations and moved the law far from the Founders’ understandings.110 Accepting the fact of pervasive change is a necessary step in forcing us to think anew about the nature of international law and its proper role in American law and government. Appeals to simplified ideas of “original intent” or “original understanding” seldom, if ever, capture either the complexities of the founding era or the realities of subsequent historical developments. Similarly, appeals to supposedly normative “traditions” are too often invocations of made-up standards confected from scattered shards of history and willful acts of imagination. Such concepts usually obscure our understanding of the past while consciously or unconsciously twisting it to support dubious or novel claims in the present. They thereby corrupt our efforts to discern whatever particular – and usually elusive – lessons the past might actually have to teach.111 In contrast, an honest recognition of both the complexity of the historical record and the reality of persistent change can provide a more reliable foundation for efforts to understand the present and to sustain the enterprise of adapting the principles of American law and government wisely to the demands of an evolving society and an increasingly globalized world.

B. Sovereignty, Inherent Powers, and American Constitutionalism Another persistent theme is the influence of the concept of sovereignty. International law made sovereignty the defining mark of the nation-state: complete independence from all other nations, freedom from obligation to any political superior, and absolute authority over its territory and citizens. That idea of sovereignty, however, fit uncomfortably with two basic principles of American constitutionalism: that the federal government is a government of limited and delegated powers and that American citizens have rights and liberties that are beyond the power of government to infringe.112 In spite of the ill fit, the transformation of the United States in the post–Civil War decades gave the idea of sovereignty a special appeal. Northern victory created a newly 110 111

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Chapter 7, p. 242; Chapter 8, pp. 279–83; Chapter 6, pp. 217–23; White, supra note 12, at 109–10, 148–49. Professor Stephan presents a more qualified view. See Chapter 10, pp. 331–38. See, e.g., Hathaway, supra note 19, at 1306 (evolution of Treaty Clause jurisprudence and the development of executive agreements brought profound shifts from the original purpose of the clause; “the law simply developed over time in response to particular events and circumstances”). See, e.g., McCulloch v. Maryland, 17 U.S. 316, 405 (1819). Tension between traditional principles and ideas of inherent sovereign powers was apparent, for example, in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1889), where the majority upheld congressional power as “an incident of national sovereignty,” id. at 42, while three dissenters rejected that theory and insisted that the “power of Congress is delegated and not inherent, and is therefore limited.” Id. at 67. Similarly, in Fong Yue Ting v. United States, 149 U.S. 698 (1893), the majority relied on “an inherent and inalienable right of every sovereign and independent nation,” id. at 711, to uphold the power of Congress to deport certain aliens, while three dissenters rejected the doctrine as inconsistent with the Constitution’s principles of limited government. See id. at 737 (Brewer, J., dissenting); id. at 757–58 (Field, J., dissenting); id. at 762–63 (Fuller, C.J., dissenting).


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unified and vibrant nation, while explosive economic growth made the United States the world’s most productive nation and generated unprecedented levels of wealth and power. Westward expansion filled the continent with “white” settlers and new States, while economic expansion pushed the nation’s political and economic interests across the Pacific and on to the shores of Asia. Those developments spurred the nation to assert itself with increasing boldness in international affairs. At the same time, millions of ethnically and religiously diverse immigrants from across the world poured into the country, unnerving the nation’s dominant Anglo-Saxon Protestant population and exacerbating racial, ethnic, and religious tensions throughout the society. Those rapid and stunning changes combined to press a variety of new demands on the federal government – for overseas territorial acquisitions, ethnically based immigration restrictions, limitation or elimination of Native American treaty rights, and support for market penetration and control throughout the world, especially in the Western Hemisphere and the vast untapped regions of Asia. Satisfying those new demands often required the exercise of novel or expanded national powers, and to many Americans it came to seem that the United States, as a truly sovereign nation, must necessarily possess whatever powers were needed to achieve those ends. The Court seemed to accept that logic.113 As Professors Lee and Sloss point out in Chapter 4, the Court “began to extrapolate common characteristics of inward sovereignty as a corollary to the vision of international law,” and “proceeded from the idea that all sovereigns possess the same set of powers and rights in foreign relations to the concept that there is a similar set of domestic powers inherent in what it means to be a sovereign state.”114 Beginning in the 1870s the idea of inherent sovereign powers helped underwrite the expansion of federal authority in a variety of areas, including immigration, territorial governance, the law of governmental immunity, the limits of judicial jurisdiction, the plenary power of Congress over Indian tribes, and the power of the federal government – the President in particular – over foreign affairs.115 Upholding the authority of Congress to exclude aliens in 1892, for example, Justice Horace Gray invoked “an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.”116

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Positivism dominated international law thinking when the Court began to address those new problems and confronted constitutional sources that offered uncertain support for responsive policies that enjoyed great popular support. For the most part, the Court upheld those policies. See generally Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). Chapter 4, p. 152. See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) [hereinafter Cleveland, Powers Inherent in Sovereignty]; Sarah H. Cleveland, The Plenary Power Background of Curtiss-Wright, 70 Colo. L. Rev. 1127 (1999). Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892); accord Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893) (right to deport noncitizens is “an inherent and inalienable right of every sovereign and independent nation”); Juilliard v. Greenman, 110 U.S. 421, 447 (1884) (power to coin money “universally understood to belong to sovereignty”); United States v. Lee, 106 U.S. 196, 206–07 (1882) (“the supreme power in every state” creates immunity of sovereign from suit); Boom Co. v. Patterson, 98 U.S. 403, 406 (1879) (eminent domain “requires no constitutional recognition; it is an attribute of sovereignty”).

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While the Court continued to invoke such inherent powers reasoning in foreign affairs cases well into the twentieth century,117 it began turning away from that reasoning in domestic law cases at the end of the nineteenth. That doctrinal bifurcation stemmed largely from the different political and institutional considerations that moved the Court in domestic and international cases,118 and it inspired in domestic law cases the increasing use of an interpretive method that can be called “infusionary textualism” – the practice of justifying desired rights or powers by infusing them into specific constitutional provisions. That method would render inherent power reasoning unnecessary and banish it from orthodox constitutional thinking, first at the turn of the century in domestic law cases and then during the later twentieth century even in most areas of foreign affairs law. The initial decline of inherent power reasoning in domestic law cases was due largely to the sharp political conflicts that marked the decades after 1890. Then, Populists, Progressives, labor unions, social dissidents, academic legal scholars, and an emerging plaintiffs’ personal injury bar all began charging the Court with pro-corporate biases and subjective decision making. Under those concerted attacks, vague ideas of “inherent” powers and other non-textual grounds for constitutional rulings became intensely suspect. The Court’s inherent power decisions after the Civil War had commonly involved the assertion of national power over disfavored ethnic groups and distant foreign possessions,119 and for that reason they had seemed relatively acceptable and uncontroversial, if not highly desirable. The Court’s decisions beginning in the 1890s that addressed intensely contested domestic issues, however, inspired vigorous and widespread criticism. Quickly, the Justices came to realize that prudence dictated minimizing or abandoning inherent power reasoning in domestic law cases and resting their decisions instead on specific and well-established legal sources, above all on the Constitution itself.120 Indeed, insofar as 117

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The outstanding example is, of course, Curtiss-Wright. See also Mackenzie v. Hare, 239 U.S. 299, 311–12 (1915); Burnet v. Brooks, 288 U.S. 378, 396, 400, 405 (1932); United States v. California, 332 U.S. 19, 34 (1947). Professor Waters places the Court’s final rejection of inherent powers in Afroyim v. Rusk, 387 U.S. 253 (1967). See Chapter 12, p. 412; Afroyim, 387 U.S. at 257 (holding that Congress possessed no powers “as an implied attribute of sovereignty”). The Court likely felt far more comfortable invoking ideas of sovereign and “inherent” national powers in foreign affairs cases. Such cases were much less likely to provoke sustained domestic disputes and more likely to rally Americans behind rhetoric that portrayed the United States in world affairs as a strong and respected nation fully equal in rights and powers to all others. While still a senator, Justice Sutherland embraced inherent powers reasoning in foreign affairs law and made the point clearly: “Why should any citizen of the great Republic, proud of its strength and glory, desire that his government should be inferior in power to any government?” George Sutherland, The Powers of the National Government, reprinted as S. Doc. No. 417, 61st Cong., 2d Sess. at 7 (1910). The “inherent plenary power” doctrine “derived directly from late-nineteenth century judicial decisions addressing Indians, aliens, and territorial expansion,” and the Court developed it “in a series of decision in these areas between 1886 and 1910.” Cleveland, Powers Inherent in Sovereignty, supra note 115, at 7. Senator Sutherland was one of the first anti-Progressives to recognize the dangers of inherent powers reasoning and to develop an elaborate and politically responsive theory to cabin its uses. In 1910 he maintained that such reasoning was proper only in addressing “external” issues where national power was complete and exclusive and that it did not apply to “internal” issues where the Tenth Amendment limited federal power. If not so cabined, he argued, inherent powers reasoning could trump the rights of the States and give Congress authority to pass the federal child labor bill as well as the power to regulate other domestic areas including manufacturing, master–servant law, and conditions of factory labor. Sutherland, supra note 118, at 10–12. On the Court, he continued to invoke the idea of inherent sovereign powers in foreign relations law, see United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936), but rejected the idea with respect to domestic matters. See Carter v. Carter Coal Co., 298 U.S. 238, 294–95 (1936).


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the Justices in their domestic law jurisprudence sought more commonly to limit than extend government authority, they were primed in that area to abandon the potentially dangerous theory of inherent sovereign powers and embrace in its place the far safer theory of limited and delegated powers. In that context, the Court abandoned “inherent powers” reasoning in domestic law cases and began the practice of justifying desired rights and powers by infusing them into specific constitutional provisions. Such infusionary textualism was obviously advantageous. It justified the desired rights and powers by providing them with a textual grounding in the Constitution, and it demonstrated that those rights and powers neither arose from the personal views of the Justices nor contradicted the Constitution’s fundamental principles of limited and delegated power. The technique was not entirely novel,121 but in the late nineteenth century it drew strength from two more recently established practices. One was the Court’s use of “general” law – the idea that there were basic principles of reason and morality that properly controlled human affairs in the absence of specific “local” rules – and its gradual expansion of that category to include most common law subjects as well as some areas of constitutional law. As the Justices grew increasingly comfortable giving ever wider scope to “general” law, they found it easy to incorporate the analogous principles of international law into its realm, including ideas of sovereignty and “inherent powers.”122 Such basic principles of “general” law, they believed, were surely consistent with the principles of the Constitution itself. By the 1890s, when the Justices confronted rising domestic challenges and sought firmer foundations for their domestic law decisions, they readily came to see those “general” principles as actually embedded in the textual provisions of the Constitution itself. The other practice that helped advance the development of infusionary textualism was the Court’s blending of inherent powers reasoning with more traditional text-based arguments by conceiving of them as alternate or interrelated grounds of decision.123 In the Legal Tender Cases,124 for example, which Professors Lee and Sloss identify 121

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In Federalist No. 31 Hamilton suggested the desirability of expansive interpretations of national powers in terms that seemed similar to later ideas of inherent sovereign power. “A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.” The Federalist No. 31, at 190 (Alexander Hamilton) (Edward Meade Earle ed., 1937). His subsequent interpretation of the Necessary and Proper Clause highlighted the potential elasticity of textualism, see Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank, in 8 The Papers of Alexander Hamilton 98 (Harold C. Syrett et al. eds., 1965) [hereinafter Hamilton, Bank Opinion], and the Court followed his lead in McCulloch v. Maryland, 17 U.S. 316 (1819). Early doctrines such as the “dormant” Commerce Clause, see Willson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829), and the doctrine of “non-selfexecuting” treaties, see Foster v. Neilson, 27 U.S. 253 (1829), found substantive powers and limitations in the Constitution – and, consequently, new authority in the federal judiciary – that had no warrant in the document’s text. See, e.g., Huntington v. Attrill, 146 U.S. 657, 683 (1892) (“In this country, the question of international law must be determined in the first instance by the court, state or national, in which the suit is brought. If the suit is brought in a Circuit Court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions.”). Chief Justice John Marshall had used the same technique when he held that the United States could create territorial courts either under its “general” powers of sovereignty or under the Territories Clause, U.S. Const. art. IV, § 3, cl. 2. See American Ins. Co. v. Canter, 26 U.S. 511, 546 (1828). 79 U.S. 457 (1871).

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as “one of the Court’s earliest manifestations of inherent power reasoning,”125 Justice Joseph Bradley’s concurrence invoked the principle of “inherent and implied powers” while noting that, in the event the principle “be not true,” the “express authority” of the Necessary and Proper Clause – on which the majority had primarily relied – also justified the Court’s decision.126 Similarly, when the Court began expanding the powers of the President, it did so by mixing vague principles of “international relations” and “the nature of the government under the Constitution” with ordinary statutory and constitutional grounds of decision.127 In a brash example of the calculated fusion of these distinct theories, Justice Edward White approved American territorial expansion on the ground that the federal government, like every other “sovereign nation,” possessed “the full right to acquire territory” and that it did so “in virtue of its sovereignty, supreme within the sphere of its delegated power.”128 His reasoning, in effect, made inherent and delegated powers synonymous.129 In the turn-of-the-century decades, the Court resorted to infusionary textualism in a variety of controversial domestic areas. Most fundamental, in a series of cases in the 1890s it infused the content of its “general” constitutional law into the Due Process Clause of the Fourteenth Amendment. The infusion allowed the Court to transform “general” constitutional law into truly “federal” constitutional law binding under the Supremacy Clause and authorizing federal control over such issues as takings, contractual freedom, the requirement of just compensation, the reasonableness of rate regulation, and “public purpose” limitations on the taxing power of States and municipalities.130 The Court also used infusionary techniques to deal with many narrower issues. Hans v. Louisiana131 infused into the Eleventh Amendment an expansive concept of state sovereign immunity that was inconsistent with the amendment’s express terms, unsupported by the Court’s pre–Civil War jurisprudence, and unjustified in terms of the sovereign immunity doctrines of international law.132 In re Debs133 injected into several otherwise irrelevant constitutional provisions the principle that the federal courts 125 126 127 128 129

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Chapter 4, p. 153. Legal Tender Cases, 79 U.S. 457, 556 (1871) (Bradley, J., concurring). For similar reasoning, see Juilliard v. Greenman, 110 U.S. 421, 447 (1884) (holding the issuance of “greenbacks” constitutional). In re Neagle, 135 U.S. 1, 64 (1890). Downes v. Bidwell, 182 U.S. 244, 303 (1901) (White, J., concurring). White explicitly declared that federal power had to be “derived expressly or by implication” from the Constitution, id. at 288, while nonetheless invoking an “inherent attribute” of sovereignty, id. at 300, and insisting that “our forefathers” created a government that “was endowed with those general powers to acquire territory which all independent governments in virtue of their sovereignty enjoyed.” Id. at 302. The powers of sovereignty, therefore, were necessarily embedded in the text of the Constitution, “either in express terms or by lawful implication.” Id. at 288. Michael G. Collins, Before Lochner – Diversity Jurisdiction and the Development of General Constitutional Law, 74 Tul. L. Rev. 1263 (2000); Michael G. Collins, October Term, 1896 – Embracing Due Process, 45 Am. J. Legal Hist. 71 (2001). 134 U.S. 1 (1890). See Edward A. Purcell, Jr., The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and “Federal Courts,” 81 N.C. L. Rev. 1927, 1934–44 (2003); Chapter 4, p. 160 (identifying the original Eleventh Amendment with the international law principle of sovereignty and arguing that Hans went well beyond what that concept would justify). Subsequently, the Court infused the term “admiralty” into the Eleventh Amendment in spite of the fact that its text extended its reach only to suits “in law or equity.” See Ex parte New York, 256 U.S. 490 (1921). 158 U.S. 564 (1895).


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possessed an equitable power to maintain interstate order by injunction, while Plessy v. Ferguson134 empowered the States to establish legalized racial segregation by inserting the decisive qualification of “separate” into the Constitution’s unqualified guarantee of “the equal protection of the laws.” The Insular Cases infused the distinction between “incorporated” and “unincorporated” territories into the Constitution, a distinction that paralleled Plessy’s “separate but equal” doctrine and served analogous racial goals.135 Another series of cases infused a substantive national lawmaking power over maritime matters into the admiralty jurisdiction conferred by Article III.136 A third series infused into the Commerce Clause a new “unconstitutional conditions” limitation on the power of States to regulate out-of-state corporations.137 A fourth infused a new and substantially broadened doctrine of “field preemption” into the Supremacy Clause.138 A fifth infused substantive limits on state statutes and conflict of law rules into the Full Faith and Credit and Due Process Clauses.139 Most audacious of all, in 1907 Kansas v. Colorado140 infused an exclusive national judicial lawmaking power over interstate disputes into – of all things – the Tenth Amendment.141 By the time of World War I, then, the Court no longer felt any need to invoke ideas of sovereignty or “inherent” powers in domestic law cases. When rights or powers seemed necessary and desirable, it could simply infuse them into some constitutional provision and thereby confer on them a textual foundation.142 Subsequent developments – including incorporation of the Bill of Rights, announcement of constitutional “privacy” rights, development of a “special” federal common law, and continuing expansions of executive power – proceeded by similar infusionary techniques.143 Once the method 134 135 136

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163 U.S. 537 (1896). See supra p. 297. Butler v. Boston & Savannah S.S. Co., 130 U.S. 527 (1889); S. Pac. Co. v. Jensen, 244 U.S. 205 (1917); see Note, From Judicial Grant to Legislative Power: The Admiralty Clause in the Nineteenth Century, 67 Harv. L. Rev. 1214, 1230–37 (1954). Gerard C. Henderson, The Position of Foreign Corporations in American Constitutional Law: A Contribution to the History and Theory of Juristic Persons in Anglo-American Law ch. 8 (1918); see, e.g., Ludwig v. W. Union Tel. Co., 216 U.S. 146 (1910); Pullman Co. v. Kansas, 216 U.S. 56 (1910); Harrison v. St. Louis & San Francisco R.R. Co., 232 U.S. 318 (1914). See, e.g., S. Ry. Co. v. Reid, 222 U.S. 424 (1912); see Alexander M. Bickel & Benno C. Schmidt, Jr., The Judiciary and Responsible Government, 1910–1921, at 270–75, 415–18 (1984); Stephen A. Gardbaum, The Nature of Preemption, 79 Cornell L. Rev. 767, 795–805 (1994). See, e.g., Allgeyer v. Louisiana, 165 U.S. 578 (1897); N.Y. Life Ins. Co. v. Head, 234 U.S. 149 (1914); Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531 (1915). Professor Ramsey notes the way these cases replaced customary international law with domestic law sources. See Chapter 7, pp. 235–36. 206 U.S. 46 (1907). See Purcell, supra note 58, at 57–63. Brewer’s theory in Kansas v. Colorado presumably responded to the positivist stricture that Holmes, struggling with the question of the Court’s authority in interstate disputes, had announced the previous year: absent a controlling congressional statute, the “only ground” on which the Court could control a State was “one which must be implied from the words of the Constitution.” Missouri v. Illinois, 200 U.S. 496, 519 (1906); see Chapter 7, p. 230. Using reasoning similar to White’s in Downes, Professor Alford shows how the “inherent” power and “external” sovereignty language of Curtiss-Wright can be given textual foundation by invoking Hamilton’s theory of “resulting” powers. See Chapter 8, pp. 282–83. Similarly, Professor Stephan shows how the Court gradually came to locate stronger legal protections for aliens and for the status of citizenship in the constitutional text. See Chapter 10, pp. 339–44. In this regard, the significance of Erie is that, in contrast to the Court’s decisions in admiralty and interstate disputes, it cabined a major head of federal jurisdiction (diversity) with an anti-infusion principle.

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was understood and its advantages recognized, it could be applied in any constitutional field.144 Two critical doctrines illustrated the process. The power of the President to make international agreements that would be binding as domestic law without congressional authorization was initially identified as flowing from inherent “powers of external sovereignty.”145 Subsequently, the Court explained that power as based on the provisions in Article II, Sections 2 and 3, authorizing the President to recognize and deal with foreign nations.146 Similarly, the doctrine of plenary congressional power over Native American tribes developed in the late nineteenth century, and the Court explained it as a power “inherent” in the nation’s sovereignty. In the early twentieth century, however, it began suggesting textual bases for the power, referencing both the Territory Clause and the Indian Commerce Clause as its source.147 Eventually, it expressly rejected the inherent power rationale148 while making it crystal clear that Congress nonetheless continued to hold the exact same plenary power that the nineteenth-century cases had upheld on grounds of “inherent” sovereign power. In 1989 the Court announced the completed infusion. Providing “Congress with plenary power to legislate in the field of Indian affairs,” it declared, was the “central function of the Indian Commerce Clause.”149 The Court’s recourse to inherent powers reasoning, as well as its subsequent use of infusionary textualism, further undermines the claim that in the late nineteenth and early twentieth centuries it was in thrall to a highly “formalist” and deductive jurisprudence. Its flexible, expansive, and innovative reasoning in both inherent power and textualist modes suggests, instead, that the Court was profoundly instrumentalist.150 It used sharp categories and deductive reasoning to be sure, but it shaped the categories and deployed the reasoning artfully to achieve the practical social, political, and institutional ends that its majorities sought.151 Rather than following some rigid logic of “essentialist” categories, 144

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Traces of the old inherent power idea remain in foreign affairs law, especially in immigration law. See Cleveland, Powers Inherent in Sovereignty, supra note 115, at 158–63. Infusionary techniques, of course, could be used as easily to impose new limits on rights and powers as to expand them. For a series of opinions infusing into the words “enforce” and “appropriate” increasingly heavy and exacting substantive limitations on the power of Congress under Section 5 of the Fourteenth Amendment, see, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999); Bd. of Tr. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). For an effort to infuse into the words an even more restrictive limitation on congressional power, see Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 741 (2003) (Scalia, J., dissenting, joined by Kennedy, J.). Compare, e.g., Hamilton, Bank Opinion, supra note 121, at 102 (word “necessary” in the Necessary and Proper Clause means “no more than needful, requisite, incidental, useful, or conducive to”). United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); see Chapter 6, p. 220. United States v. Pink, 315 U.S. 203, 228–30 (1942). Cleveland, Powers Inherent in Sovereignty, supra note 115, at 58–74, 78–81. Morton v. Mancari, 417 U.S. 535, 551–52 (1974). Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989). Professor Hollis identifies the “results oriented” nature of the Court’s two different interpretive methods for construing treaties. See Chapter 2, pp. 81–83. Professor Cleveland suggests that the Court relied on inherent powers reasoning rather than the Commerce Clause, which seemed the most obvious textual basis for congressional power in immigration cases, because it was unwilling, for domestic anti-legislative and pro-federalism reasons, to expand the scope of the commerce power. Cleveland, Powers Inherent in Sovereignty, supra note 115, at 269–71. Professor Alexander Aleinikoff suggests similarly that use of the Commerce Clause in immigration cases would have nudged the Court toward a higher degree of judicial supervision than Congress wanted or the Court wished to exercise. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 83


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the Court was acutely sensitive to contemporary problems and needs, and it molded its jurisprudence to manage those problems and meet those needs.152 While positivism in its international law form declined in the decades after The Paquete Habana153 and positivism as a general philosophy of law came under severe challenge after World War II, domestic law positivism survived and prospered in the form of a textualist convention. Most judges and commentators insisted that all legitimate power in the American legal and governmental system was derived from the specific text and structural provisions of the Constitution itself, and infusionary textualism saved that particular form of positivism by giving it the adaptability and creative potential necessary for its efficacy.

C. Context and Congruence Although focused on the evolution of doctrine, the chapters in this book suggest a keen awareness of the broad historical conditions that helped shape the Court’s international law jurisprudence. There seems to be agreement, for example, that in the Republic’s early years the Court was particularly sensitive to the rights and obligations of international law because the new nation was relatively weak and dependent.154 Similarly, all scholars recognize the profound impact of World War II and its consequences on international law, especially the establishment of the United Nations and the subsequent development of human rights law. Most recently, the emergence of movements for gay rights, abolition of the death penalty, and vigorous use of the Alien Tort Statute155 have forced international law issues to the forefront of contemporary politics and generated sharp ideological disagreements on the Court. For the period from the late nineteenth century to World War II, the connection between broad historical forces and the Court’s international law jurisprudence may not seem quite so obvious. The chapters in this period, however, point to a number of historical factors that influenced the Court’s work, including the influence of positivism, the Spanish-American War and World War I, and the rapidly expanding power of the United States in world affairs. To those factors, at least two more should be added: first, the changing nature of international law itself and second, prevailing European and American attitudes about race and expansionism.

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Am. J. Int’l L. 862, 864 (1989). Assuming that such domestic concerns about the commerce power did push the Court toward adopting inherent powers reasoning, that fact further supports the proposition that the Court shaped its concepts not according to some essentialist logic but to serve the practical political and social purposes the Justices shared. See, e.g., Harry N. Scheiber, Instrumentalism and Property Rights: A Reconsideration of American ‘Styles of Judicial Reasoning’ in the Nineteenth Century, 1975 Wis. L. Rev. 1; Edward A. Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958, at 253–54, 394– 96 nn.13–15 (1992). 175, 677 (1900). Chapter 1, pp. 7, 44–46; see also Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819 (1989); Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 792 (1952). For a qualifying view, see Douglas J. Sylvester, International Law as Sword or Shield? Early American Foreign Policy and the Law of Nations, 32 N.Y.U. J. Int’l L. & Pol. 1 (1999) (the early Republic used international law to compete commercially with stronger European powers). 28 U.S.C. § 1350.

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As for international law, the late nineteenth century brought three interrelated developments that gave the field new visibility and influence. One was political: the unifications of Italy and Germany in 1870, the consolidation of the European state system, and the subsequent rush among those states for territorial acquisitions and influence in Asia, Africa, and the Pacific. A second development was institutional: the appearance of codes, practices, scholarship, and organizations that gave the field of international law a new prestige and professional status. The proposed codes of Bluntschli and Field appeared in 1868 and 1872, respectively; the Treaty of Washington in 1871 paved the way for the widely noted Alabama Claims arbitration that was successfully concluded the following year; the Institute de Droit International held its first meeting in 1873; the Berlin West Africa Conference convened in 1884; and the First Hague Conference met in 1899.156 In the United States international lawyers and foreign policy experts began gathering annually in 1895, and a decade later they established the American Society of International Law, with Elihu Root, the nation’s Secretary of State, as its first president.157 Scholars in the field, the society’s “Prospectus” declared in 1906, were establishing “the true principles of international relations” and advancing “the science of International Law.”158 A third development was cultural and ideological: giving new prescriptive connotations to the traditional idea that international law was the law of “civilized” nations. Europe and the United States came to share a unifying belief that they quite authoritatively defined what it meant to be “civilized” and, consequently, that they could determine which countries around the globe met that standard and how “civilized” nations could seek to dominate and control the “uncivilized.”159 The first development undergirded the burgeoning political, military, and cultural power of the modern industrialized nationstate;160 the second provided the intellectual foundation for a new and assertedly more authoritative international law; and the third crowned Europe and the United States as the voices of that law and, implicitly, the arbiters of the legal rights of the rest of the world.161 In the United States equally broad changes combined to make the new, professionalized international law especially attractive. Rapid industrialization, urbanization, and 156 157 158 159

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See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 ch. 1 (2001). See Frederic L. Kirgis, The American Society of International Law’s First Century, 1906–2006 ch. 1 (2006). The American Society of International Law, Prospectus, 1 Am. J. Int’l L. 130, 131 (1907). “Outside the family of civilized nations . . . the central purpose of international order was to promote the civilization of decadent, backward, savage or barbaric peoples.” Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and the Order of World Politics 7 (2002); accord Koskenniemi, supra note 156, ch. 2; Antony Anghie, Imperialism, Sovereignty and the Making of International Law ch. 2 (2004). This function of international law, while newly sharpened and more broadly utilized, was not new. See Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (1999). It was at the end of World War I when Max Weber defined the nation-state as the entity that possessed “the monopoly of the legitimate use of physical force within a given territory.” Max Weber, Politics as a Vocation, in From Max Weber: Essays in Sociology 77–78 (H.H. Gerth & C. Wright Mills eds., 1958) (emphasis in original). Gerrit W. Gong, The Standard of “Civilization” in International Society 56 (1984). Under international law, for example, territory not in possession of a “civilized” state was available for occupation or conquest. See Cleveland, Powers Inherent in Sovereignty, supra note 115, at 28–30 and sources cited in id. at 28 nn.135–36.


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population growth expanded the nation’s international interests and brought vigorous new efforts to penetrate foreign markets and influence world affairs.162 At the same time, the failure of Reconstruction, the political resurrection of the South, and the near-total eclipse of ideas of racial equality brought a resurgence of intense, pervasive, and often violent racism, while the de facto national reunion between North and South that marked the century’s end sanctioned the racist upsurge and further stoked the fires of nationalism. The nation’s growing international assertiveness moved beyond familiar policies designed to expand foreign markets and prevent European intrusions into the Western Hemisphere and began to inspire more ambitious campaigns to ensure total hemispheric dominance, build and control a canal through the Isthmus of Panama, acquire strategically located naval bases across the Pacific, and protect the nation’s far-flung markets and expanding national interests by building – and if necessary using – a large and expensive modern navy. Those international and domestic developments proved highly interactive. On a social and political level, the United States – particularly its legal and professional elites – grew closer to Western Europe, most especially to England. Increasing numbers of Americans traveled abroad and established continuing international contacts,163 while the United States and Great Britain buried the long-running resentments that had marked their relations since the American Revolution and the War of 1812.164 Their statesmen gradually established a pivotal diplomatic rapprochement, and the elite bar in the United States – particularly influential in the conduct of foreign affairs165 – cultivated close personal and professional ties with its English counterpart.166 Those developments intensified America’s sense of its European, and especially its English, roots, while England and Europe responded by accepting the United States as a “civilized” member of the “family of nations” and a major player in world affairs.167 On an ideological and cultural level, nationalist and expansionist fervor unified the United States and Europe in their understanding of the proper bases of world order and highlighted the significance of their concept of sovereignty. Further, a shared and pervasive racism combined with international law’s fundamental concept of “civilization” to unite them behind legal and “scientific” race theories that justified their common, if often jealous and sharply conflicting, efforts to colonize or control vast regions of Asia, Africa, and the Pacific.168 Their shared cultural attitudes and common international

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164 165 166

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See, e.g., Paul Kennedy, The Rise and Fall of the Great Powers 198–249 (1989). “The decades after 1860 witnessed a tenfold expansion in the volume of Americans sailing abroad.” Michael B. Oren, Power, Faith, and Fantasy: America in the Middle East, 1776 to the Present 228 (2007); see also James T. Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (1986). “Imperialism played a major role in the great rapprochement.” Bradford Perkins, The Great Rapprochement: England and the United States, 1895–1914, at 64 (1968). Between 1889 and 1945 every U.S. Secretary of State was a lawyer. Richard H. Steinberg & Jonathan M. Zasloff, Power and International Law, 100 Am. J. Int’l L. 64, 65 (2006). See, e.g., Daniel T. Rogers, Atlantic Crossings: Social Politics in a Progressive Age (1998); Richard A. Cosgrove, Our Lady the Common Law: An Anglo-American Legal Community, 1870– 1930 (1987). There were also tensions, of course, especially a growing wariness about the power of Imperial Germany. Duncan Bell, Victorian Visions of Global Order: An Introduction, in Victorian Visions of Global Order: Empire and International Relations in Nineteenth-Century Political Thought 10 (Duncan Bell ed., 2007).

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interests drove an even deeper wedge – religious, cultural, ethnic, and racial – between them and most of the other countries and peoples of the world.169 Those complex developments nudged the Court’s jurisprudence along two distinct but ideologically related lines. First, they helped inspire it to begin nationalizing and centralizing ever larger areas of American law and government. Second, they helped induce it to accept racist assumptions and approve racist policies in both its domestic and international law decisions. Indeed, it was the race issue that produced the most important exception to the Court’s nationalizing thrust, for on that issue decentralization won the day in domestic law. That exception, however, only highlighted the political and ideological compatibility of the Court’s domestic and international law decisions, for in both areas the Court’s doctrines brought the same result: the nation’s “white” majority was authorized to subordinate disfavored racial and ethnic groups. On the first trend, the Court began reshaping federal law to enhance the power of the national government and broaden the reach of its law.170 Over the years from approximately 1890 to 1917 – always excepting racial matters – the Court expanded the powers of both Congress and the President, imposed constraining new legal limits on the States, and strengthened the federal judicial power to enable the national courts to exercise a tighter supervisory authority over the federal government and especially over state courts, legislatures, and administrative agencies.171 The Court’s international law decisions reflected that same drive. Professor Ramsey tells us that the Court expanded the reach of federal judge-made law and began constitutionalizing such areas as personal jurisdiction and conflict of laws.172 Professor Van Alstine argues that the Court adopted a “purposive approach to treaty interpretation designed, fundamentally, to advance amicable relations” with other nations.173 Such an approach reflected the Court’s recognition of both the nation’s growing involvement in world affairs and the desirability of a centrally controlled foreign policy. More particularly, Van Alstine maintains that the foundational precedents that underwrote the Court’s sweeping interpretation of the treaty power in Missouri v. Holland were handed down in the same period: Geofroy v. Riggs in 1890 and both De Lima v. Bidwell174 and Neely v. Henkel in 1901.175 Most broadly, Professor Alford argues that the Court’s international law decisions worked to support “assertions of government power.”176 Thus, the Court’s international and domestic law decisions 169

170 171

172 173

174 175 176

See, e.g., Paul R. Spickard, Almost All Aliens: Immigration, Race, and Capitalism in American History and Identity (2007); Paul A. Kramer, The Blood of Government: Race, Empire, the United States, and the Philippines (2006); Kornel Chang, Circulating Race and Empire: Transnational Labor Activism and the Politics of Anti-Asian Agitation in the Anglo-American Pacific World, 1880–1910, 96 J. Am. Hist. 678 (2009). The Court was also suspicious of legislative power, and it sought in certain areas to check national and, most especially, state legislation. Edward A. Purcell, Jr., Ex parte Young and the Transformation of the Federal Courts, 1890–1917, 40 Toledo L. Rev. 931, 942–60 (2009). During the years from 1886 to 1910 the Court established the foundations of inherent powers doctrine in dealing with Native Americans, aliens, and federal territories. See Cleveland, Powers Inherent in Sovereignty, supra note 115, at 7, 10–11. Chapter 7, pp. 231–33 (admiralty); id., pp. 235–36 (personal jurisdiction and conflict of laws). Chapter 6, p. 194. “Indeed, on the subject of treaty law, the period from 1901 to 1945 is among the most active ones in the Court’s history.” Id., p. 193. Professors Lee and Sloss find the Court using customary international law to shape treaties and statutes to serve the same purposes. See Chapter 4, pp. 130–33. 182 U.S. 1, 218 (1901) (“The treaty-making power is as much a constitutional power as the legislative or judicial powers. It is a supreme attribute of sovereignty.”). Chapter 6, pp. 198–202. Chapter 8, p. 283.


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were mutually supporting parts of its accelerating nationalization of American law and government.177 On the second trend, the Court found the ideological underpinnings of international law welcome support for its decisions on domestic matters. Like most Americans, the Justices accepted and sometimes proclaimed racist ideas, and their racial attitudes helped shape their rulings on a number of domestic issues.178 In the 1870s they began to turn away from the freedmen and freedwomen, and in a series of cases over the next three decades they essentially scuttled both the constitutional and the statutory achievements of the Civil War and Reconstruction. The fundamental premise of international law – that it grew from “the acts and usages of civilized nations”179 – was entirely satisfactory to the turn-of-the-century Court, and it assumed apodictically that the United States, like England and Western Europe but unlike most of the rest of the world, was truly “civilized.”180 Indeed, the Court frequently identified the United States as “civilized” as well as “European,” “English-speaking,” and “Christian.”181 All those terms carried well-recognized racial connotations.182 Through the concept of “civilization,” Professor Gail Bederman has explained, “many Americans found a powerfully effective way to link male dominance to white supremacy.”183 Indeed, in Dred Scott Chief Justice Roger Taney had invoked that same premise – that “civilization” had a racial foundation – when he declared that blacks were excluded from full citizenship by all “civilized nations.”184 In international law matters, the Court’s decisions reflected those same attitudes.185 Immigration cases, especially those involving Chinese and Japanese, revealed clear 177 178

179 180

181

182

183

184 185

Compare Cleveland, Powers Inherent in Sovereignty, supra note 115, at 251. Purcell, supra note 58, at 2001–28; Cleveland, Powers Inherent in Sovereignty, supra note 115, at 256–67. Racial hostility and congressional efforts to negate the treaty rights of Chinese immigrants may have strengthened the Court’s commitment to the “later-in-time” rule. See Chapter 2, p. 60; Chapter 6, pp. 206–07. Hilton v. Guyot, 159 U.S. 113, 163 (1895). “Repeatedly, the Court made reference to ‘the law of civilized nations.’” Chapter 3, p. 101. The Court asserted that Congress had the power to limit the rights of Indians who were U.S. citizens because the United States was “a superior and civilized nation” and Indians were “essentially a simple, uninformed and inferior people” who remained “Indians in race, customs, and domestic government.” United States v. Sandoval, 231 U.S. 28, 39 (1913). Harriman v. ICC, 211 U.S. 407, 419 (1908) (United States as “English-speaking”); Otis v. Parker, 187 U.S. 606, 609 (same); Reynolds v. United States, 98 U.S. 145, 164 (1879) (polygamy “odious among the northern and western nations of Europe” and in the United States, and “almost exclusively a feature of the life of Asiatic and of African people”); Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892) (“this is a Christian nation”); United States v. Macintosh, 283 U.S. 605, 625 (1931) (“We are a Christian people”). The religious term “Christian” often took on racial connotations in references to Africa and Asia. See, e.g., Chew Heong v. United States, 112 U.S. 536, 560, 569 (1884) (Field, J., dissenting). In England claims about the inferior nature of most non-European societies “found extraordinarily widespread acceptance” and “tracked various theories about the distinctiveness of the European law of nations as uniquely civilised or distinctively Christian.” Jennifer Pitts, Boundaries of Victorian International Law, in Victorian Visions, supra note 168, at 68. Gail Bederman, Manliness & Civilization: A Cultural History of Gender and Race in the United States, 1880–1917, at 23 (1995); see also Jacqueline Fear-Segal, White Man’s Club: Schools, Race, and the Struggle of Indian Acculturation (2007). Dred Scott v. Sanford, 60 U.S. 393, 410 (1857); see Chapter 1, p. 43. As Professors Lee and Sloss point out, there were exceptions. See Chapter 4, p. 155. The Court occasionally offered protection to disfavored racial and ethnic groups. The classic example is Yick Wo v. Hopkins, 118 U.S. 356 (1886), and the number of examples increased somewhat during the 1920s and 1930s. See, e.g., Asakura v. City of Seattle, 265 U.S. 332 (1924). The Court was arguably less racist than

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and sometimes quite overt racist views.186 So, too, did the cases dealing with Native Americans.187 Further, in the Insular Cases, Justice White enjoyed the seeming support of the majority for his statement that a treaty could not “incorporate an alien people into the United States without the express or implied approval of Congress.”188 The danger of adding “alien people” to the Union, the Justices believed, should require the purposeful assent of the whole Congress, a requirement that made such incorporation exceptionally unlikely.189 Similarly, Professor Hollis notes the proliferation of treaties with non-European nations in the late nineteenth century and suggests insightfully that “pervasive racial prejudices” embedded in the distinction between “civilized” and “uncivilized” states “may explain why so many more non-European treaties proved inapplicable or unenforceable than their European counterparts.”190 Thus, in the turn-of-the-century decades international law merged with racism, expansionism, and American nationalism to generate a distinctive ideological formation that informed the policies of the turn-of-the-century Court. Its characteristic elements were well represented, for example, in the thinking of Robert E. Lansing, a prominent international lawyer from New York who was a founding member of the American Society of International Law and later Woodrow Wilson’s Secretary of State.191 Writing on the theory of sovereignty in 1907, Lansing insisted that the Civil War had “nationalized” sovereignty in the United States and that the Union’s “national character” could never thereafter be destroyed.192 He believed that the federal government possessed total “external sovereignty” and that it was free to govern the nation’s “colonial possessions” and colonial populations without constitutional limitation.193 Indeed, subsequently serving in the administration that introduced formal racial segregation in federal employment practices, Lansing was comfortable embracing the perspective of “the civilized world” and dismissing “the savage races of today.”194 Finally, he approved the infusionary textualism the Court used to justify its nationalizing and centralizing decisions in both domestic

186 187

188 189

190 191 192 193 194

general popular opinion, the political branches, state and local governments, and most white-controlled organizations and associations. Compare, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), with Nishimura Ekiu v. United States, 142 U.S. 651 (1892). See, e.g., Montoya v. United States, 180 U.S. 261, 265, 267 (1901) (“Owing to the natural infirmities of the Indian character, their fiery tempers, impatience of restraint, their mutual jealousies and animosities, their nomadic habits, and lack of mental training, they have as a rule shown a total want of that cohesive force necessary to the making up of a nation in the ordinary sense of the word.” Consequently, “[w]hile as between the United States and other civilized nations an act of Congress is necessary to a formal declaration of war, no such act is necessary to constitute a state of war with an Indian tribe.”). Downes v. Bidwell, 182 U.S. 244, 312–13 (1901) (White, J., concurring). Racial fears and anxieties were a major force in shaping American expansionism and especially in limiting territorial annexation and the “incorporation” of “non-white” territories. Robert L. Beisner, Twelve Against Empire: The Anti-Imperialists, 1898–1900, at 219 (1992) (1968); Love, supra note 90; Perkins, supra note 164, at 74. Chapter 2, pp. 61, 65; accord Cleveland, Powers Inherent in Sovereignty, supra note 115, at 14. See generally Daniel M. Smith, Robert Lansing, in An Uncertain Tradition: American Secretaries of State in the Twentieth Century 101 (Norman A. Graebner ed., 1961). Robert E. Lansing, Notes on Sovereignty in a State, 1 Am. J. Int’l L. 105, 128 (1907) (part 1). Robert E. Lansing, Notes on Sovereignty in a State, 1 Am. J. Int’l L. 297, 301–04 (1907) (part 2). Lansing, supra note 193, at 300; Lansing, supra note 192, at 113; see also Lansing, supra note 193, at 320 (contrasting “the civilized and barbarous races of today”); Robert E. Lansing, The Peace Negotiations: A Personal Memoir 97, 102 (1921). On the Wilson administration’s institution of racial segregation, see Arthur S. Link, Woodrow Wilson and the Progressive Era, 1910–1917, at 64–66 (1954).


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and foreign relations law. The “fixity” of written constitutions, Lansing explained, “frequently” caused difficulties “when new and unforeseen conditions” arose. In the United States, however, the problem of “fixity” had been “overcome by a liberal construction of certain provisions of the federal constitution.” The Court had embraced “the theory that it was the original intention of its framers to provide for every contingency that could possibly arise and that the powers granted by the constitution are sufficient for every condition.”195 The Court, in other words, had accepted the doctrine of sovereignty and the supervening claims of national necessity. The social, cultural, economic, and political conditions of the late nineteenth and early twentieth centuries underwrote those ideas in Lansing’s mind as well as in the minds of a great many of his contemporaries. That context made international law a highly useful source of both inspiration and justification for the Court.

V. Conclusion The chapters in this section highlight the variety, complexity, and adaptability of the Supreme Court’s international law jurisprudence. They show on the one hand that the spare language of the Constitution and the uncertain nature of international law gave the Court substantial and sometimes virtually uncabined discretion in resolving the issues it faced and, on the other hand, that continually changing domestic conditions and the nation’s shifting role in world affairs repeatedly induced it to reformulate and remold its doctrines. Neither the text of the Constitution nor the sources of international law wholly determined its course. Nor, of course, did any determinate original intent or understanding. Rather, by its best if imperfect lights the Court struggled to fulfill the twin – and sometimes tension-plagued – charges that its role imposed: an institutional duty to enforce the law and an institutional need to accommodate the dominant demands and perceived interests of the American people. Recognizing the nature of that tension and the complex considerations that shaped the Court’s course leads to a deeper understanding of both its evolving international law jurisprudence and the nation’s overall system of constitutional government. 195

Lansing, supra note 193, at 311; see also id. (“The medium, by which this desirable and necessary elasticity has been obtained, is judicial interpretation.”).

IV From World War II to the New Millennium

10 Treaties in the Supreme Court, 1946–2000 Paul B. Stephan∗

Postwar America, most would agree, was a very different country from the one that went to war four years earlier. Consider first the demographic changes. Vast numbers of men had left their homes to move around the country, if not around the world. Almost as many women had taken on new roles in the wartime economy, moving sociologically if not necessarily geographically. At least as important was the transformation of the economy. A fragile recovery from a profound depression became an extraordinarily robust economic expansion. State management of that economy was extensive and, thanks to the happy outcome of the war, widely accepted as desirable. Then there was the intangible impact of the war. A great sense of triumph, untempered by the widespread devastation and economic collapse that afflicted the other victorious allies (not to mention the vanquished), suffused the culture. Higher education opened up to the returning GIs on a scale never before known in American history, enabling access for many to a meritocratic, rationalized (in the bureaucratic sense) middle and upper-middle class. The conditions faced by returning African American soldiers were little different from those they had left, but their experience in the war made them less willing to accept the indignities of Jim Crow. And a distant and exotic outside world had become a direct and pervasive presence, both in the parts of the globe that the victorious nation administered, reconstructed, and guarded and in the other, darker parts that posed a new, seemingly existential threat. Finally, there remained a residue of disappointment in international institutions and international law, which had failed to maintain peace and security in the 1930s and, some believed, left the nation unprepared for the war to come. The rapid eclipse of the postwar institutions – the United Nations, the Bretton Woods institutions, the Nuremberg Tribunal – by the onset of the Cold War only aggravated this disillusionment. These national transformations also affected the work of the Supreme Court.1 Its internal changes in the preceding years were in their own way as dramatic as the country’s. ∗

1

John C. Jeffries, Jr. Distinguished Professor of Law and Elizabeth D. and Richard A. Merrill Professor of Law, University of Virginia. I am grateful to G. Edward White and to participants of the Santa Clara Conference on the History of International Law and the Supreme Court and a Columbia Law School workshop for comments and suggestions. Errors and misjudgments are mine alone. For a sketch of the rise of the “twentieth-century view” of foreign affairs law by the end of the war, see G. Edward White, Observations on the Turning of Foreign Affairs Jurisprudence, 70 U. Colo. L. Rev. 1109 (1999).

317

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Between 1937 and 1945 President Roosevelt had replaced all of the Justices who had made up the Court at the time of his 1933 inauguration, with his appointees forming a majority by 1940. The ensuing break with past jurisprudence seemed revolutionary at the time and remains a subject of great political as well as scholarly interest.2 The change in its composition might alone have launched the Court in a new direction regarding foreign affairs, even if the place of the United States in the world had not changed so dramatically. With regard to treaties, the point can be put simply: whatever its practice in the first half of the century, the postwar Court subordinated international agreements to a secondary source of legal rules. Both before and after 1946, the Court found itself facing cases that raised a generic technical question: in what circumstances would a compact made with another country provide a rule of decision that a court could or must apply in the dispute before it? Stated thus, the abstract question seems one that might invite a consistent response across periods and contexts, a problem whose solution might rest on propositions tested and applied in the early history of the nation. But the postwar Court rarely regarded abstract propositions as sufficient to guide the decision of cases. Instead, more often than not, the Court changed its stance in the face of changes in context. For most of the period, and perhaps its entirety, the Court remained pragmatic and minimalist in all but a few fields. Between 1946 and 2000 four broad trends shaped the context in which the Court addressed treaty questions. First, and arguably the most significant, is the point just made: Americans in 1946 believed that they lived in a different world from that before the war, and a great sense of historical discontinuity meant that the pull of the past had correspondingly weakened. Second, the administrative state, although a pre-war creature, became more substantial and pervasive as a result of the war. Figuring out how court-imposed rules worked in an administrative state and how this world differed from the realm of private law became pressing challenges. Third, the practical implications of Supreme Court decisions were radically changed by the United States’ new and unprecedented international engagements. In particular, most if not all of the Justices for much of the period believed that the United States faced a real threat of annihilation due to Soviet nuclear capability and that the processes that framed the threat were not subject to judicial influence. Fourth, the Court found itself increasingly involved in a civil rights revolution that was mostly framed by distinct U.S. problems of race. Each of these trends was messy, of course. Breaks with the past are never clean or complete. The administrative state had many manifestations and provoked various responses, especially as the New Deal generation began to leave the scene. Midway through the period under study many people with whom the members of the Court had much in common – politicians, intellectuals, academics in particular – experienced a crisis of confidence about U.S. foreign policy and the country’s place in the world. And both the methods and goals of the judicial portion of the civil rights struggle, like the broader movement generally, attracted sharp debate. All this further complicated what might seem like a straightforward technical question: how and to what extent are treaties part of a judge’s toolbox? To pick up a theme developed in earlier chapters in this volume, the treaty decisions of the Supreme Court during the postwar period conveyed a profound sense of change, 2

See generally Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998).


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accented by undertones of continuity. The Court often conveyed a sense that the treaties it interpreted presented different problems, or that the disputes it confronted arose in different contexts, from the cases that shaped treaty doctrine during much of the nation’s prior history. Yet when cases resonated with the past, putting the Court in a posture that would have seemed familiar to earlier Justices, the decisions employed many of the same methods of the past, articulating and applying old doctrines. To explore the Court’s shifting and complex responses to the seemingly simple question of treaties as a source of rules of decision, I have studied all of its 130 cases between 1946 and 2000 in which at least one opinion touched on the legal effect of treaties and other international compacts. This focus has obvious limitations. On the one hand, reading only opinions that talk about international compacts is underinclusive, inasmuch as it ignores the interplay that never made it into the text of opinions and omits the cases where no one thought to raise a treaty argument in spite of its relevance. On the other hand, it is overinclusive, inasmuch as some references to treaties are makeweights or part of throwaway and poorly considered arguments. More to the point, during this period the Court rarely acted as if it were developing doctrine on the law of treaties. The signal-to-noise ratio of these cases is pretty low. Yet another complication emerges once one considers the nature of the Supreme Court. In theory, it is a court of general law, with a particular focus on federal law. No particular subject matter is privileged. Yet the modern Supreme Court increasingly found its anchor in constitutional interpretation. This provided the lens through which it viewed much of its docket, treaty cases included. Thus, analyzing Court decisions as if they were deliberate efforts to address issues that international law specialists care about opens the door to misunderstanding. Accordingly, this chapter adopts a thematic focus that draws on enduring constitutional controversies. First, it explores separation of powers issues, in particular the Court’s ruminations on the deference the judiciary owes to the political branches. One part of this inquiry comprises the use of treaties and other compacts as a guide to judicial interpretation of legislation. Second, it looks at treaties and other international compacts as an independent source of executive power. Third, it surveys instances where the Court saw a treaty as a source for protection of individuals against the government. In particular, it looks at the ways the Court used treaties to invalidate state laws or practices, thereby extending the prerogatives of the federal government. Finally, it considers where the Court invoked a treaty as relevant to private disputes. I include in the last category cases where the Court invoked a treaty to resolve land and wildlife claims, even if one or more claimant was a public body. The picture that emerges is puzzling, but not completely incoherent. First, no opinion produced during this period contains a sustained discussion of the criteria for determining when a treaty might supply a rule of decision in a judicial proceeding. One encounters statements to the effect that treaties address issues largely committed to the political branches, even though the Court on occasion reaffirms the capacity of courts to engage in treaty interpretation. Only once did the Court bother to pronounce a treaty selfexecuting. Most of the work of treaties seemed to come in the form of guiding statutory interpretation. A few opinions invoke treaties as one tool among many for constitutional interpretation. In some cases the Court invoked treaty language as the source of a rule of decision, but without providing an explanation as to why. At no point did the Court address the obvious tension between its general doubts about the value of treaties to the

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judicial process and its unreserved application of certain kinds of treaties in particular lawsuits. If one squints, however, a pattern emerges. The distinction between public and private law, much vilified in academia but still useful in understanding how the Justices saw the world, maps on to the divergence in the Court’s approach to treaties.3 Although the form and manner of adoption of the treaties that came before the Court in the second half of the twentieth century might have resembled that of the treaties applied and interpreted by Chief Justice John Marshall in the first portion of the nineteenth, many (but not all) had different functions and purposes than the earlier treaties. Put simply, the Court took those differences into account, rather than acting as if all treaties were alike. Where treaties purported to provide rules governing ownership of real estate, rules of contract, and (private) tort, the Court accepted uncritically the applicability of treaty rules to the case before it. Where treaties might have constrained the authority of the sovereign that ratified them in fields such as criminal justice, business regulation, and tax investigation, the Court was considerably more cautious about holding the government to its pledge, absent an intervening statute. The Court was more willing to invoke treaties as a ground for preempting state rules, but almost never without bolstering from federal legislation. These tendencies cannot be seen in isolation from other contemporary developments. The second half of the twentieth century witnessed extensive and profound transformations of the Court’s constitutional jurisprudence. In particular, the Court used the Constitution for the development of conceptions of individual liberty and equality that would hardly have been recognizable in Marshall’s day. In some areas treaties were an impediment to the Court’s constitutional projects. Where they were, the Court overrode them. In other areas, such as state discrimination against aliens, treaties offered only piecemeal solutions to what the Court came to see as a general problem. Again, constitutional jurisprudence supplanted treaties. Surveying the many disparate cases, it becomes possible to talk of something like an evolving doctrine of treaty law in the Supreme Court during the postwar era. First, and perhaps most significant, the Court did not act as if all treaties and international agreements fit into the same pigeonhole. The Court behaved as if there were different kinds of treaties, although it never provided a clear explanation of how and why some compacts were different from others. Second, the Court did not shy away from construing the meaning of treaties in cases where it found such construction necessary. Third, the Court on occasion saw the presence of treaties as evidence that an area had become internationalized and thus removed from the competence of state lawmakers, but such determinations depended heavily on context and the presence of other kinds of federal law. So described, this doctrine may seem sloppy and inconsequential. It neither satisfies those who want courts to view treaties as a species of law presumptively accessible to the judiciary nor those who regard treaties as a distinct form of lawmaking with no direct impact on any litigation.4 Rather, it shows the postwar Court’s pragmatism in the face 3 4

For a recent review of the state of the controversy, see Barry Cushman, The Structure of Classical Public Law, 75 U. Chi. L. Rev. 1917 (2008). Compare John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution and the Original Understanding, 99 Colum. L. Rev. 1955 (1999) (arguing that Framers intended treaties not to encroach on domestic legislative power), with Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 Colum. L. Rev. 2095 (1999) (disagreeing).


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of new challenges and competing interests. The Court that emerges is one that decides cases, not one that sees its primary function as our instruction and illumination.

I. Treaties and the Separation of Powers As a conceptual matter, the postwar Supreme Court, loosened from the hold of precedent, might have embraced any of several general approaches to treaties. On the one hand, the Court could have given great deference to the political branches. It might have believed that an international compact represents the joint understanding of the state parties, and that it would be presumptuous for the court of one nation to impute to any other state its interpretation of the treaty’s meaning. In a world where international misunderstanding and irritation could lead to consequences unimaginable in the innocent time before global war and nuclear Armageddon, the Court might lean heavily on the branches of government that dealt directly with foreign states when it addressed such questions. In particular, the Court might view itself as an agent of the Executive when it came to international agreements, producing whatever outcome the government wanted. If it cared at all about how other nations confronted the problem of judicial involvement in treaty interpretation and enforcement, it might have taken comfort from the widespread contemporary practice, universal in the English-speaking world as well as the Communist bloc in the immediate postwar period, of barring courts from resorting to international agreements as directly applicable domestic law. On the other hand, the Court might have embraced American exceptionalism. The Supremacy Clause, after all, seems to indicate an initial commitment to judicial enforcement of at least some kinds of treaties (not that original understandings of the Constitution mattered much to the postwar Court, at least for most of the period under study). The Court might have read into the Supremacy Clause a general view about the judicial function, one that treated all legal texts as equally enabling of judicial power. The practice of other English-speaking states might not have mattered. Moreover, in a world where the United States suddenly was a triumphant superpower, the views of other state parties about the meaning of their commitments might have meant little. Instead, the Court might have jealously guarded its prerogative to interpret and apply the law even when the legal text was embedded in an international compact and even when the implication of the exercise of that prerogative was a source of discomfort both for the Executive and other states. One influential account of this period argues that the Court did go down the first path. Harold Koh argues that during the period under study, the Court gradually transformed the separation-of-powers requisite that the courts defer to executive determinations about international politics into a more extreme institutional conclusion: that courts are somehow incompetent not simply to find facts in international cases, but also to make the very determinations regarding international and foreign affairs law that they had been making since the Republic began.5

A careful review of the treaty cases indicates that Koh’s judgment is too facile and mostly wrong. In the immediate aftermath of the war, the Court embraced neither a strongly deferential view nor the exceptionalist position. The closest thing to an essay on 5

Harold H. Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2357–58 (1991).

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the judicial role comes in Justice John Marshall Harlan II’s sprawling and sometimes enigmatic opinion in Banco Nacional de Cuba v. Sabbatino,6 and even this only alludes to treaties. In considering the judicial role in enforcing international law, Harlan wrote: It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.7

One easily can read this language as applicable only to customary international law and thus irrelevant to treaty law. It at least suggests, however, a more general reluctance to use even a treaty text as a means for establishing principles of interest and justice.8 Whatever the proper understanding of Harlan’s admonition, the Court’s practice throughout the period under review was consistent with such general concerns.9 From the very beginning of the postwar period, the Supreme Court indicated its unwillingness to get out in front of the political branches with regard to treaties. The earliest cases revealed an assumption that the Court derived its authority over treaties from the political branches, rather than from some independent constitutional basis. But where the political branches had given approval for the Court to act, normally in the form of a legislative enactment, it felt free to do so. Three cases decided between 1946 and 1950, involving the 1929 Geneva Convention Relative to the Treatment of Prisoners of War (Geneva Convention)10 and its companion Red Cross Convention,11 illustrate this complex mixture of deference and judicial selfconfidence. In re Yamashita12 considered the legality of a military commission created to try Japanese soldiers for war crimes. The contemporary Articles of War, legislation 6

7 8

9

10 11 12

376 U.S. 398 (1964). Koh describes this case as the product of an “odd coalition of the judicial restraint and anticolonialist elements on the Court.” Koh, supra note 5, at 2362. The discovery of an anticolonialist faction on the Court is surprising and probably would have surprised the Justices. 376 U.S. at 428. The reference to codification, for example, is ambiguous. Did Harlan mean to take in only treatises and nongovernmental projects such as the Restatements, or did he also intend to refer to multilateral treaties? The Court also stated that it might have reached a different result if “a treaty or other unambiguous agreement regarding controlling legal principles” applied to expropriations. Id. This statement suggests that some treaties could provide a basis for judicial action, but not necessarily that all would. It is not clear whether Harlan meant to suggest that a treaty also could be ambiguous and therefore inappropriate as a source of a rule of decision or instead that all treaties and some other agreements could provide courts with applicable rules. One should note that Harlan’s long meditation on the virtues of judicial deference to the political branches in the face of indeterminate international law somehow evolved into a doctrine justifying a strong role for judges in the fabrication of rules of international law. This fascinating development took place outside the Supreme Court, however, and has yet to receive the Court’s unambiguous endorsement. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 828–31 (1997); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1627–41 (1997). For the argument that Sabbatino intended this development, see Harold H. Koh, Is International Law Really State Law? 110 Harv. L. Rev. 1824, 1833–38 (1998). Convention Relative to the Treatment of Prisoners of War, Geneva, Jul. 27, 1929, 47 Stat. 2974 (1932) [hereinafter Geneva Convention]. Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, Jul. 27, 1929, 47 Stat. 2074 [hereinafter Red Cross Convention]. 327 U.S. 1 (1946).


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generated by the political branches years before ratification of the Geneva Convention, subordinated such commissions to the law of war. The Court, in determining whether the prosecution of General Yamashita complied with the law of war, construed several relevant treaties as doing two things that were necessary to uphold Yamashita’s conviction. On the one hand, the majority held that these treaties imposed an obligation on commanders to answer for the conduct of their troops.13 On the other hand, the Geneva Convention did not require that war crimes tribunals employ “the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power.”14 The majority ruled that the quoted language from Article 63 of the Geneva Convention applied only to punishment for misconduct occurring once a soldier had become a prisoner of war and not to prosecution for crimes committed while a combatant. These were, of course, the government’s interpretations. Justice Wiley Rutledge disagreed with both these holdings.15 Because, unlike the majority, Rutledge would have invoked a treaty to block the government’s preferred course, he devoted some attention to the treaty’s legal effect. He acknowledged that Japan had denounced the treaty, but circumvented this obstacle by basing his argument on the statutory reference to the “law of war.” By codifying custom, he suggested, the Geneva Convention informed the meaning of this legislative term, independent of Japan’s treaty obligations.16 In Yamashita all members of the Court felt comfortable construing a treaty that, due to the implications of a previously enacted statute, provided rules of decision in certain judicial proceedings. But a unanimous Court in FTC v. A.P.W. Paper Co.17 characterized enforcement of the 1929 Red Cross Convention as “a matter for the executive and legislative departments.”18 The dispute involved the legality of a “Red Cross” trademark for paper products, created in good faith well before the establishment of the eponymous humanitarian organization in the United States. Domestic law before U.S. entry into the Red Cross Convention had grandfathered this trademark, but Article 28 of that Convention obligated the United States “to prevent the use by private persons” of the red cross designation.19 The Court had no difficulty holding that only the political branches could determine how to honor that obligation. The ease with which the Court dismissed the treaty argument obscured the basis for this holding. What was it about Article 28 of the Red Cross Convention that led the Court to treat it as exclusively “a matter for the executive and legislative departments”?20 One might argue that the command to “prevent” the prohibited use was by its terms addressed to domestic lawmakers and thus that this provision was not self-executing. But 13 14 15

16 17 18 19 20

Id. at 15–16 (Annex to Fourth Hague Convention of 1907, Tenth Hague Convention, Geneva Red Cross Convention of 1929). Id. at 20–22 (quoting Article 63 of Geneva Convention). The second holding, that the same-courts-and-procedure obligation does not apply to war crimes tribunals, was repudiated in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The author of the majority opinion in Hamdan was, of course, Justice Rutledge’s law clerk in Yamashita. See Laura Krugman Ray, Clerk and Justice: The Ties That Bind John Paul Stevens and Wiley B. Rutledge, 41 Conn. L. Rev. 211 (2008). In particular, Rutledge suggested that the Hague Convention was evidence of the customary law of war. Id. at 72 n.36 (Rutledge, J., dissenting). 328 U.S. 193 (1946). Id. at 203. Geneva Convention, supra note 10, art 28. 328 U.S. at 203.

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one might also argue that the judiciary was capable of interpreting and applying this obligation. The Court considered neither of these arguments in its summary disposition of the issue. But a case decided four years later may shed some light on what the A.P.W. Paper Court had taken for granted. Johnson v. Eisentrager21 rejected various constitutional and Geneva Convention claims asserted by German prisoners whom a military commission had convicted of violating the terms of their nation’s surrender. The opinion is mostly famous for its holding that persons with no ongoing tie to the United States and who were outside U.S. territory enjoyed no constitutional rights against the U.S. government. But in the course of rejecting another argument, namely that the use of the military commission did not comply with the 1929 Geneva Prisoner of War Convention, the Court observed: It is, however, the obvious scheme of the [Convention] that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.22

What A.P.W. Paper left murky – whether only Article 28 or the whole Red Cross Convention addressed only the political branches and not the courts – now became clear. For the postwar Court, both of the 1929 Conventions, couched though they were in the language of individual entitlements and legal process, had no domestic legal effect. They empowered the political branches, but not the judiciary, to develop rules governing the treatment of prisoners of war. Here is a template that we see invoked throughout the period: there exists a class of treaties that give the judiciary no direct authority to constrain government actors, but that do provide insight into the meaning of statutes enacted with such treaties in mind. Thus, the Court could have a debate in Yamashita about how the Geneva Convention informed the statutory term “law of war.” But no one on the Eisentrager Court was prepared to argue that this Convention operated independently of the Articles of War and other statutes.23 One might dismiss these early cases as a hangover from the war’s exuberance and an unhealthy respect for military authorities. But, as this chapter discusses at length below, a series of cases in the mid-1950s also dealt with the topic of military justice and also downplayed the significance of international agreements, but did so to enable greater judicial protection of individual rights. The executive agreements in question were all Status of Forces Agreements (SOFAs) under which the host country surrendered the 21 22

23

339 U.S. 763 (1950). Id. at 789 n.14. The three dissenters, Black, Burton, and Douglas, challenged the majority’s constitutional holdings and argued that the question whether the proceedings against the respondents violated the law of war was not before the Court. They did not address, however, the majority’s ruling that the Geneva Conventions did not create rules of decision that a court could apply. All three had joined the majority opinions in Yamashita and A.P.W. Paper (the latter of which Douglas had written). The Eisentrager respondents maintained, inter alia, that the law of war did not permit their prosecution because, as civilians, they had not committed any offense. It is not clear whether the Court regarded their claims as unworthy of rebuttal, or instead believed that even if the war crimes tribunal had exceeded its jurisdiction, the respondents had no judicially enforceable right to protection under the Geneva Convention. More generally, the Court did not clarify whether the law of war, a statutory standard that it had no difficulty applying in Yamashita, encompassed the Geneva Convention and, if not, why not.


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power to prosecute military personnel and their dependents for crimes committed on its territory, on the premise that the U.S. military would address such conduct directly. After initially upholding these agreements, the Court ultimately invalidated them to the extent they enabled the Executive to submit civilian dependents of active-duty military personnel to a court martial.24 A per curiam decision handed down in the 1950s illustrates the complexity of the Court’s vision of the relationship between treaties and government power. Wilson v. Girard25 treated the Japanese SOFA as having the status of a treaty because a security treaty with Japan had implicitly endorsed it. The Court found in the SOFA authority for the United States to hand over an active-duty serviceman to Japan for a homicide prosecution. The Court said that only the existence of a constitutional impediment, or the adoption of a contrary statute subsequent to ratification of the treaty, could bar the United States from surrendering the accused.26 The Court did not find in the SOFA any judicially enforceable safeguards that might protect the accused serviceman. The SOFA thus gave the government authority to surrender a serviceman to a foreign state, no matter what process that state would follow in procuring conviction and punishment. An international agreement based on a treaty thus could expand governmental, and particularly executive, authority even though the SOFA did not provide individuals with any justiciable rights. However, a treaty could not override the Constitution or, more precisely, the Court’s new constitutional project.27 One cannot read these cases as laying down a flat rule requiring legislative implementation of treaties. At roughly the same time that it decided Eisentrager, a unanimous Court in Warren v. United States28 held that the Shipowners’ Liability Convention provides courts with rules to apply to disputes between a shipowner and its crew over compensation for injuries. Justice William Douglas, writing for the majority, noted earlier precedent suggesting that an act of Congress might be needed to implement the Convention, but declared that the provisions of the Convention “are operative by virtue of the general maritime law and that no Act of Congress is necessary to give them force.”29 Douglas’s characteristically cryptic formulation suggests multiple meanings. One plausible gloss, however, is that a treaty normally does not provide the judiciary with rules of decision to 24

25 26

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28 29

Kinsella v. Krueger, 351 U.S. 470 (1956) (allowing court martial of dependent on capital charge); Reid v. Covert, 354 U.S. 1 (1957) (reversing Krueger after reargument); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (extending Covert to noncapital cases). 354 U.S. 524 (1957). The court seemed to invoke the later-in-time rule, which permits a subsequent legislative enactment to negate whatever domestic legal effect a treaty might have. For a later case stating the principle more fully and using it as the basis of its holding, see United States v. Dion, 476 U.S. 734 (1986) (treating criminal statute as overriding obligations under treaty with Yanckton Sioux). To similar effect, but in the context of economic regulation rather than criminal law, see Panama Canal Zone v. Grace Line, Inc., 356 U.S. 309 (1958). Writing for the Court, Douglas found in the 1902 HayPauncefote Treaty a basis for the creation of an entity to set fares for shipping through the Canal Zone, but regarded the discretion to choose a particular fare as resting on a legislative delegation and not subject to judicial review. 340 U.S. 523 (1951). Id. at 526. The Court later followed Warren with respect to the effect of the Convention in Vella v. Ford Motor Co., 421 U.S. 1 (1975). In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 177 n.25 (1981), the Court made a passing reference to a similar treaty, the Convention for Safety of Life at Sea, in the course of determining a shipowner’s liability to an employee of a stevedore. Neither case expanded on the principles discussed in the text.

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apply, but an exception exists for areas where federal courts already have well-established common law powers. Because the Court historically had interpreted the grant of federal jurisdiction over admiralty as an additional grant of lawmaking power, giving direct effect to the Shipowners’ Liability Convention did not enlarge judicial power.30 At least as late as 1960, then, the Court appeared to regard treaties as relying largely on the political branches for their fulfillment, unless they involved a subject over which the judiciary clearly had extensive lawmaking authority. Liberal Justices such as Douglas seemed to believe this as much as conservatives such as Tom Clark. But the 1960s ushered in a period of both burgeoning judicial activism and cultural change and instability. Growing discontent over the Vietnam War as well as increasingly fraught race relations dominated the period.31 The Court did not remain totally isolated from these forces. The most obvious sign of change was Justice Douglas’s quixotic (and perhaps self-glorifying) solo dissents from the denial of certiorari in cases challenging the legality of the conflict in Southeast Asia. As dissents from preliminary orders, none of the opinions does more than identify issues Douglas was prepared to take seriously. In each of those cases, however, Douglas indicated a willingness to invoke treaties dedicated to general issues of peace and security as a tool to attack the war.32 One might dismiss these opinions as unserious and lawless.33 They do show Douglas at his worst. Could he really have believed that the international agreement constituting the Nuremberg Tribunal imposed an ongoing and binding obligation on the United States not to carry out a war of aggression and that a federal court could invoke that 30

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In Farrell v. United States, 336 U.S. 511, 517 (1949), the Court said of a provision in the Convention: “While enactment of this general rule by Congress would seem controlling, it is not amiss to point out that the limitation thus imposed was in accordance with the understanding of those familiar with the laws of the sea and sympathetic with the seaman’s problems.” It is noteworthy both that the Court described the adoption of a treaty as an enactment by Congress and that it felt the need to state that the rule in question did not conflict with the common law rules of admiralty, which in turn the Court derived from international practice. On the exceptionalism of admiralty jurisdiction as a basis for federal judicial lawmaking, see Bradley & Goldsmith, supra note 9, at 849–51; Barry Cushman, Lochner, Liquor, and Longshoremen: A Puzzle in Progressive Era Federalism, 32 J. Mar. L. & Com. 1 (2001). See generally Paul B. Stephan, Courts, the Constitution, and Customary International Law – The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States, 44 Va. J. Int’l L. 33 (2003) (discussing changes in attitudes toward government authority and international law during the 1970s). See Mitchell v. United States, 386 U.S. 972 (1967) (Douglas, J., dissenting from denial of certiorari) (invoking London Charter of the Nuremberg Tribunal as a basis for attacking war); Mora v. McNamara, 389 U.S. 934 (1967) (Douglas, J., dissenting from denial of certiorari) (invoking, inter alia, Kellogg-Briand Pact and UN Charter as outlawing wars of aggression). In four later cases Douglas relied on rather novel constitutional arguments for the same general purpose. Holmes v. United States, 391 U.S. 936 (1968) (Douglas, J., dissenting from denial of certiorari); Hart v. United States, 391 U.S. 956 (1968) (Douglas, J., dissenting from denial of certiorari); Massachusetts v. Laird, 400 U.S. 886 (1970) (Douglas, J., dissenting from denial of certiorari); Da Costa v. Laird, 405 U.S. 979 (1972) (Douglas, J., dissenting from denial of certiorari). Although one also could embrace them, even if the Court did not. For defenses of Douglas’s project, see Harold H. Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 296 (1990); John H. Ely, The American War in Indochina: The Unconstitutionality of the War They Didn’t Tell Us About, 42 Stan. L. Rev. 1093 (1990); Warren F. Schwartz & Wayne McCormack, The Justiciability of Legal Objections to the American Legal Effort in Vietnam, 46 Tex. L. Rev. 1033 (1968). But see Louis Henkin, The Supreme Court 1967 Term–Foreword: On Drawing Lines, 82 Harv. L. Rev. 63, 90 (1968) (“Denying certiorari may well have been the better part of valor.”).


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obligation in determining whether a draftee had the right to refuse military service? The inversion of the posture of Eisentrager, which regarded treaty-based law of war (that is to say, non-statutory law of war) as the province of the warriors only, could hardly be more complete. On another level, however, the opinions are striking for their assumption that innovative treaty arguments, like innovative constitutional arguments, are part of the judicial toolbox. The cases all involved war resisters, people who twenty-five years earlier would have been regarded by many as cowards or traitors. The crisis of confidence precipitated by U.S. involvement in Vietnam had made it possible for Douglas, if not for his brethren, to grab any tool handy to provide the resisters with a defense to their punishment. Not a stickler for doctrinal consistency, Douglas deemed treaties as good a basis as any to aid the resistance.34 What also is striking is Douglas’s isolation. No one else on the Court, or for that matter any mainstream legal scholar at the time, saw these opinions as prefiguring promising developments in either the law of treaties or constitutional law. Most saw them as idiosyncratic and in some sense irresponsible. There were many reasons to disregard these gestures, but one was their assumption that treaties addressing international peace and security were amenable to judicial enforcement.35 It was not for another two decades after Douglas’s solo certiorari dissents that any other member of the Court would argue that a treaty obligation, operating independently of any statute, provided a basis for blocking a public action of the federal government.36 Each instance in which a Justice made such an argument involved a dissent. In no case did a majority embrace judicial enforcement of a treaty against the federal government (land ownership disputes aside). Consider the cases where this argument surfaced. In United States v. AlvarezMachain,37 three dissenters asserted that the U.S.-Mexico extradition treaty barred the United States from orchestrating an arrest and abduction of a criminal suspect in Mexico. The opinion did not analyze the issue of judicial enforcement extensively, but rather invoked the proposition that a treaty “in this country is also the law of the land.”38 The majority found the treaty inapplicable and thus had no need to determine anything about judicial enforcement.39 Six years later, the Court decided Breard v. Greene,40 the 34

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37 38 39

40

In another solo dissent from a denial of certiorari, Douglas indicated a more general willingness to invoke a treaty against the government outside the context of the Vietnam War. See Roach v. United States, 406 U.S. 935 (1972) (in a dispute between the government and a Panamanian bus operator in the Panama Canal Zone, where the administration awarded a monopoly over bus transport to a U.S. company, thereby destroying the Panamanian’s business, Douglas maintained that the Canal Zone Treaty did not allow the United States to do this). Douglas’s behavior ultimately led to an ill-fated attempt by House Republicans in 1970 to bring articles of impeachment. 116 Cong. Rec. 11912–14 (1970). Part III of this chapter discusses judicial enforcement of treaties against state and local, as opposed to the federal, government. Part IV deals with real estate title disputes in which the United States had a claim, which do not involve public action as such. 504 U.S. 655 (1992). Id. at 675 n.13 (Stevens, J., dissenting). In particular, the majority regarded the treaty as permissive rather than restrictive in terms of the methods the government could employ to apprehend criminal suspects in foreign territory. Because the treaty was irrelevant to the dispute, the Court did not discuss the follow-on question of judicial enforceability of the treaty. 523 U.S. 371 (1998).

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first of six cases addressing judicial enforceability of the Vienna Convention on Consular Relations and its Optional Protocol.41 The majority found it unnecessary to decide whether the Vienna Convention provided a basis for judicial interference with a pending execution; three Justices would have issued a stay and scheduled argument.42 These dissents reflect a somewhat paradoxical development that Part III of this chapter discusses at greater length. In earlier cases, such as the SOFA cases, an international agreement at least legitimated, if it did not require, a body of law that conflicted with the Court’s evolving constitutional jurisprudence. But by the 1990s, a minority on the Court became frustrated with the direction of the Court’s constitutional holdings and sought new sources of law to bolster its preferences regarding substantive justice. For these Justices, treaties (or at least treaties that bolstered their preferences) became not an obstacle, but a means of empowering their agenda. But for the Court’s majority, treaties did not enable judicial supervision of the public functions of the political branches. The criminal justice process, which both AlvarezMachain and Breard assaulted, already enjoyed significant constitutional regulation. The majority saw no reason to grant criminal defendants even greater rights under treaties. This willingness to defer to the political branches with respect to treaty enforcement did not mean that the Court regarded treaties as incapable of providing rules of decision in cases against the federal government. Rather, the Court often returned to the posture it had taken in Yamashita. Once the Court found a statutory directive that incorporated a treaty, the Court took up the task of treaty interpretation and regarded the results as binding in particular cases. However, it did not allow treaties unaccompanied by statutory implementation to serve as a basis for constraining the treaty-maker, namely the federal government.43 There are many examples of the Yamashita approach to treaties, but particularly salient is Sale v. Haitian Centers Council.44 The case involved the UN Convention Relating to 41

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The other cases are Federal Republic of Germany v. United States, 526 U.S. 111 (1999); Torres v. Mullin, 540 U.S. 1035 (2003); Medellin v. Dretke, 544 U.S. 660 (2005); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellin v. Texas, 552 U.S. 491 (2008). The majority relied on the procedural default doctrine, which it regarded as applicable to treaty claims, just as it is to constitutional ones. It dismissed Paraguay’s separate suit on the basis of Eleventh Amendment immunity and Paraguay’s lack of standing under § 1983. Justices Stevens, Ginsburg, and Breyer dissented. In Federal Republic of Germany v. United States, 526 U.S. 111 (1999), two Justices would have stayed an execution on behalf of a state with a pending claim based on the Optional Protocol. The remaining VCCR cases are outside the scope of this chapter. For discussion, see Part V.A. Tax cases are illustrative of the work that the Court allowed treaties to do. Specific provisions of the Internal Revenue Code incorporate outstanding treaties, making it unnecessary either to consider the independent legal force of such treaties or to resolve inconsistencies between a treaty and other Code provisions. Maximov v. United States, 373 U.S. 49 (1963), held that a treaty-based tax exemption for certain kinds of income received by residents of the United Kingdom did not apply to a U.S. trust, even though the beneficial owners of the trust were British. O’Connor v. United States, 479 U.S. 27 (1986), interpreted the Canal Zone Treaty as exempting U.S. citizens only from Panamanian income taxes, thus avoiding a conflict between the treaty and the Code. United States v. Stuart, 489 U.S. 353 (1989), ruled that the U.S.-Canada Tax Treaty did not impose any greater procedural constraints on a summons issued by the Internal Revenue Service at the request of Canadian authorities than did the Internal Revenue Code. Any possibility of a conflict between the Code and that treaty thus disappeared. Although three Justices disagreed with Justice Brennan’s opinion about the proper methodology for interpreting that treaty, all agreed on the interpretation. 509 U.S. 155 (1993).


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the Status of Refugees and section 243(h)(1) of the Immigration and Nationality Act of 1952.45 Congress amended section 243(h)(1) in 1980 with the purpose of conforming the Act to the international obligations of the United States. The issue for the Court was whether either of these legal instruments required the United States to provide an individualized hearing to persons seeking refugee status who had been intercepted on the high seas and thus never entered U.S. territory. Everyone on the Court agreed that the UN Convention illuminated the meaning of the statute. For Justice John Paul Stevens, the opinion’s author, and everyone else on the Court aside from Justice Harry Blackmun, the Convention did not apply to actions taken outside a nation’s territory. Blackmun argued that the Convention did have extraterritorial effect and that section 243(h)(1) implemented that obligation.46 As in Yamashita, everyone on the Haitian Centers Council Court agreed that the relevant treaty and the applicable statute were in harmony.47 In both cases, the majority read the treaty and the statute so as to avoid constraining executive discretion, while the dissenters read both more expansively so as to limit government power. More particularly, the majority in both cases embraced treaty interpretations that deferred to the Executive and to its national security dispositions.48 45

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Technically speaking, the United States is not a party to the Convention, but in 1968 it joined the Protocol Relating to the Status of Refugees, which incorporated the portions of the Convention in dispute in the case. United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 (1968). For other cases involving the Protocol and the Convention, see INS v. Stanisic, 395 U.S. 62, 79 n.22 (1969) (leaving open the question whether the treaties might constrain government action); INS v. Stevic, 467 U.S. 407, 428 n.22 (1984) (reviewing differences between pre-1980 statute and treaties and asserting that statute gave Executive the discretion to comply with the treaties); INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987) (section 208(a) of the Immigration Act reflects a different obligation under the treaties than does section 243(h)); INS v. Doherty, 502 U.S. 314, 331–32 (1992) (noting relationship between Convention and section 243(h)) (Scalia, J., dissenting); INS v. Aguirre-Aguirre, 526 U.S. 415, 426–28 (1999) (Immigration Act reflects U.S. obligations under treaties, but courts owe deference to Executive in determining what those obligations are). In all of these cases except Cardoza-Fonseca, the Court agreed with the Executive’s interpretation of its statutory powers; in no case did it disagree with the Executive about the treaty obligations of the United States. Whether Cardoza-Fonseca should be counted as a loss for the Executive or not is complicated. On the one hand, the Court disagreed with the Executive over the burden of proof to be met to establish refugee status, thus making it easier for individuals to qualify. But expansion of the class of persons eligible for refugee status, as Justice Stevens noted in his opinion for the majority, expanded the discretionary power of the Executive by increasing the number of cases in which the Attorney General, at his or her discretion, could deport a person or not. 480 U.S. at 443–45. Importantly, the Protocol and the Convention do not bar the United States from deporting refugees unless the refugees are more likely than not to face persecution. In light of the decision’s limited stakes, one should be cautious about imputing to the Court an intent to broaden the principle that statutes should be read as implementing U.S. international obligations. Cf. Chapter 12, pp. 394–95. The majority opinion even invoked the Charming Betsy doctrine, underscoring its earnestness in reconciling treaty and statute. 509 U.S. at 178 n.35. It is noteworthy that only 3 of the 130 decisions under review here referred to that doctrine by name. See also Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (avoiding statutory construction that would have invalidated executive agreement); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21–22 (1963) (limiting extraterritorial effect of statute so as to avoid conflict with other countries). For a similar executive (in)action, involving international conservation rather than national security, see Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986) (judiciary has authority to determine whether executive determination not to impose sanctions violates legislative directive to punish states that diminish effectiveness of International Convention for the Regulation of Whaling; executive interpretation of legislative directive upheld).

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Both Yamashita and Haitian Centers Council turned on questions of scope, the first of time and the second of place. The former ruled that Article 63 of the 1929 Geneva Convention did not apply to punishment for war crimes committed before a soldier’s surrender; the latter held that the UN Convention did not govern actions by a state outside its territory. By deciding the issues in this way, the Court avoided framing the cases as involving a conflict between domestic and international law. Another instance of reading a treaty narrowly to work around a statutory problem involved a provision of the Foreign Sovereign Immunities Act (FSIA). This statute, which governs the immunity of foreign states from civil suits in U.S. courts, contains a proviso stating that treaty commitments of the United States in force at the time of enactment take precedence over the statute.49 In Argentine Republic v. Amerada Hess Shipping Corp.,50 a victim of an armed attack outside a combat zone sought to take advantage of this provision. Two treaties barred the kinds of attacks that had injured Amerada Hess’s ships and created a duty to compensate for violations of this obligation. Chief Justice William Rehnquist, writing for everyone but Harry Blackmun and Thurgood Marshall, found no conflict between the treaties and immunity under the FSIA: “These conventions . . . do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts.”51 The technique employed – reading an international obligation narrowly so as to preserve a statute – also worked the other way. Many cases used U.S. treaty commitments to support a narrow reading of a statute.52 This pattern is especially clear with respect to disputes over the extraterritoriality of U.S. legislation.53 In those cases, the Court initially based its outcomes on careful scrutiny of the neighboring treaty obligations. Only later did it move in the direction of a general presumption against extraterritoriality, unlinked from particular international commitments.54 49 50 51 52

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28 U.S.C. § 1604. 488 U.S. 428 (1989). Id. at 442. Blackmun and Marshall argued that it was premature to address the applicability of § 1604 to the case, as the lower court had not considered the argument. In K Mart Corp. v. Cartier, 486 U.S. 281 (1988), for example, Justice Scalia, writing for himself and three other Justices, objected to the majority’s interpretation of a statute on this ground. A disjointed majority ruled that trademarked goods manufactured abroad by a U.S.-owned company under a license from a U.S. company did not face customs barriers when entering the United States, but that goods produced by a foreign company under the same license would. Justice Scalia, writing for himself, Chief Justice Rehnquist, and Justices Blackmun and O’Connor, argued that this outcome would violate U.S. nondiscrimination obligations under various Friendship, Commerce, and Navigation treaties. Compare Zenith Radio Corp. v. United States, 437 U.S. 443 (1978), where the Court reached an interpretation of domestic antidumping law that accorded with GATT principles but noted the inapplicability of the GATT to the particular case. Id. at 452 n.13 (“The Government does not contend that the GATT provision would supersede § 303 in the event of conflict between the two.”). A somewhat different approach involved reading the Court’s jurisdiction narrowly to avoid reaching a treaty issue. In Van Cauwenberghe v. Biard, 486 U.S. 517 (1988), a unanimous Court ruled that a district court decision not to dismiss a civil suit on the ground that an extradited person enjoyed immunity from such litigation under the relevant extradition treaty was not an appealable final order. See Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948) (treating Bahamas naval base acquired pursuant to 1940 Lend-Lease agreement as a “possession” of the United States for purposes of Fair Labor Standards Act); Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) (not applying Eight Hour Act outside U.S. territory); United States v. Spelar, 338 U.S. 217 (1949) (treating Newfoundland base acquired pursuant to LendLease as a “foreign country” under Federal Tort Claims Act); Steele v. Bulova Watch Co., 344 U.S. 280 (1952) (applying Lanham Act to transaction outside U.S. territory involving U.S. producer and U.S.


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Finally, in a handful of cases the Court touched on the possibility of dynamic interaction between the treaty process and interpretation. Advocates framed the issue as an imperative that the Court avoid an interpretation of a statute that would interfere with prospective international agreements. The Court showed little sympathy for such arguments.55 In summary, the Court throughout the postwar period declined to use treaties as an instrument to justify judicial supervision of the political branches in the exercise of their public functions, especially but not only in the criminal justice process. Rather, the preferred avenue to expand judicial review of public functions was the development of constitutional doctrine. Where international agreements got in the way of constitutional jurisprudence, the Court disregarded them. Only near the end of the period did a minority of Justices begin to see treaties as a means of revitalizing and redirecting constitutional law. At the same time, once the Court concluded that the political branches had invited it to apply and interpret particular treaties, it did so diligently and extensively.

II. Treaties and Executive Power Treaties implicate not only the relationship between the political branches and the judiciary but also the nature of executive power. Compare the President’s Article II functions in making treaties to the President’s role in the enactment of legislation under Article I. Under Article II, the President has a monopoly over the submission power, because Congress cannot exclude the Executive from the negotiation process and the Senate cannot consider a treaty unless the President or a presidential representative has signed it.56 More controversially, the Executive may have the power to not ratify a treaty to which the Senate has given consent and to terminate a treaty in force. By contrast, the two Houses of Congress have the power to initiate legislation and may enact statutes despite a presidential veto. Lawmaking through treaties thereby expands presidential influence and discretion.57

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consumers); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963) (National Labor Relations Act does not apply to foreign-flagged vessels with alien crews, even if beneficial owner of the vessels is a U.S. subject; Court noted FCN treaty that recognized significance of vessel’s nationality); EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) (Title VII does not apply outside U.S. territory); Smith v. United States, 507 U.S. 197 (1993) (Antarctica a “foreign country” under Federal Tort Claims Act); see also Guessefeldt v. McGrath, 342 U.S. 308 (1952) (using peace treaty ending World War I as a guide to interpret Trading with the Enemy Act); Lee v. Madigan, 358 U.S. 228 (1959) (treating “time of peace” limitation on court martial jurisdiction as not dependent on existence of a peace treaty). See Pfizer, Inc. v. Government of India, 434 U.S. 308 (1978) (not responding to Chief Justice Burger’s argument in dissent that decision would create disincentive for other countries to negotiate antitrust cooperation agreements); Quality King Distributors, Inc. v. L’Anza Research International, Inc., 523 U.S. 135, 153–54 (1998) (rejecting argument of United States as amicus that its holding would affect incentive of countries to enter into trade agreements); United States v. Verdugo-Urquidez, 494 U.S. 259, 275 (1990) (arguing that restrictions on U.S. searches and seizures involving foreign nationals on foreign territory should be achieved through treaties, not constitutional adjudication). For discussion of the last opinion’s assumptions about international bargaining, see Paul B. Stephan, International Law in the Supreme Court, 1990 Sup. Ct. Rev. 133, 150–54, 157–59. The formulation in text is deliberate and does not address the question whether representatives of the Senate may participate in negotiations. Moreover, allowing Presidents to choose between the two paths to lawmaking necessarily expands executive power by allowing selective choices in response to particular political dynamics.

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Legitimizing non-treaty international agreements amplifies executive power even more. Sole executive agreements, which the President promulgates without prior authorization from Congress, are the most obvious example. As long as the judiciary accepts presidential authority to act, the President may take actions that have direct legal consequences without congressional participation.58 Agreements based on legislative delegations, such as those derived from the Trade Agreements Act of 1934, are only slightly less empowering for the Executive. To the extent courts read prior statutory delegations generously, the Executive again can contract freely with foreign sovereigns to create legal obligations with domestic legal effect. Finally, the Executive can increase its power through post hoc interpretation of international agreements. To the extent that courts both defer to Executive positions about the meaning of these agreements and allow the Executive to express its views late in the day (rather than only at the time of making of a treaty), executive control over the content of treaties grows. To take an extreme (and unrealistic) case, if the courts automatically accepted the latest pronouncement of the government about what an international agreement meant, even if that pronouncement arose in the course of the litigation before the court, the Executive could leverage international agreements into awesome lawmaking power. Conversely, if the judiciary were to require an interpretation to be contemporaneous with the making of the international agreement, executive discretion would diminish.59 If the courts were to give no deference at all to the Executive’s position, executive power would be minimized. In the period immediately after the war, the political influence of the President was at a peak, reflecting the legacies of the New Deal and the war itself. The establishment of international institutions also bolstered the authority of the Executive at the expense of Congress, although one should not make too much of their influence. Perhaps the most vivid example is Truman’s successful claim that UN Security Council authorization to send troops to Korea dispensed with the need for a congressional declaration of war. Congress only intermittently pushed back, with the proposed Bricker Amendment representing the most sustained attack on executive power in international affairs until the 1970s.60 Some scholars have accused the postwar Court of facilitating the rise of the imperial national security Executive.61 This accusation seems wrong or at least simplistic. The Court played a modest but significant role in checking the growth of the Executive’s foreign relations monopoly, most strikingly with its wartime rebuke to a politically exhausted Truman administration in Youngstown Sheet & Tube Co. v. Sawyer.62 But the Court endorsed the use of executive agreements and generally, if intermittently, supported the authority of the Executive to interpret international agreements. For the Justices who voted against the Truman administration in Youngstown Sheet & Tube Co., the President’s attempt to settle an industrial dispute by taking over the affected industry went beyond any authority Congress had accorded him and fell outside the scope of inherent executive power. The foreign affairs implications of the President’s 58 59 60 61 62

See Chapter 6, pp. 220–23. See generally G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1, 120–34 (1999). Cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (authority of administrative agency to exercise discretion delegated by Congress). See infra p. 345 (discussing Bricker Amendment). See, e.g., Koh, supra note 5, at 2364. 343 U.S. 579 (1952).


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action made no difference, and none of these Justices even mentioned U.S. international obligations. Chief Justice Fred Vinson’s dissent, by contrast, began with a recitation of the treaty-based security commitments that the country had made.63 These treaties provided a context that he, along with Justices Stanley Reed and Sherman Minton, thought sufficient to justify seizure of the steel mills. For our purposes, Youngstown Sheet & Tube Co. is remarkable for its rejection of Vinson’s argument. Since the end of the war the United States had organized multiple mutual security pacts, the UN Charter first if not necessarily foremost. Were these commitments sufficient to justify any presidential action with a national security dimension, the power of the President to take any action not positively forbidden by an act of Congress would be nearly absolute. Even though the Justices in the majority did not address the issue, one can see the case as repudiating at least the most ambitious effort to link executive authority to treaties. A few years later the Court confronted its first, and so far only, opportunity to expound on the legal significance of trade-related executive agreements. It let the opportunity pass, perhaps because it could not reach any coherent position. United States v. Guy W. Capps, Inc.64 involved an agreement between Canada and the United States to settle a dispute over potatoes. Canada agreed to condition all potato exports to the United States on an undertaking by the importer not to resell the goods for food. The United States sued an importer who, it alleged, had represented that it would use potatoes for seed but instead sold them for food. The district court ruled against the government because its evidence failed to establish sales for the prohibited purpose. The Fourth Circuit went much further. Relying on Youngstown Sheet & Tube Co., it ruled that Congress had given the Tariff Commission exclusive jurisdiction over agricultural imports and thus barred the Executive from dealing with the issue through an executive agreement.65 The Supreme Court found the district court’s reasoning sufficient and chided the Fourth Circuit for reaching the competence issue unnecessarily. As a result, the Court failed to indicate the extent, if any, that legislation addressing a particular policy area disables the Executive from using the alternative channel of international negotiation. The policy against reaching issues unnecessary to resolve a case does not, of course, apply to the Court itself. One case in particular had nothing to do with international relations, yet laid the groundwork for a significant claim of executive power. In Baker v. Carr,66 an equal protection challenge to the composition of state voting districts, the majority delivered an extensive discussion of the rules of justiciability. In the course of explaining where the political question doctrine did and did not apply, Justice William Brennan seemed to endorse the power of the President to terminate a treaty. Where “conclusive governmental action” regarding termination exists, he asserted, a court will treat the matter as decided.67 Yet seventeen years later, when the question of President Carter’s termination of a treaty with Taiwan came to the Court, no one could agree on what Brennan’s statement 63 64 65

66 67

Id. at 668–69 (Vinson, C.J., dissenting). 348 U.S. 296 (1955). United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953). The opinion did not indicate whether the pact with Canada came under the aegis of the Trade Agreements Act of 1934, perhaps because the legislation conferring authority on the Tariff Commission came later in time. 369 U.S. 186 (1962). Id. at 212.

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meant.68 Brennan thought it settled that the President had exclusive authority to terminate a treaty.69 Justice William Rehnquist, writing for himself, Chief Justice Warren Burger, and Justices Potter Stewart and John Paul Stevens, argued that a dispute between the President and Congress over the issue was a nonjusticiable political question.70 Justice Lewis Powell maintained that the dispute was justiciable but not yet ripe. He would have heard the case if it had involved an act of Congress that opposed the President’s action, rather than the views of several individual members of the legislature.71 Justices Harry Blackmun and Byron White would have set the case for oral argument, and Justice Thurgood Marshall did not indicate whether he agreed with Powell or with Rehnquist.72 Nothing by the Court since has shed any light on this perplexing question.73 Whatever the basis for the Court’s unwillingness to address the constitutionality of treaty termination, it had no similar reluctance to approve the constitutional status of executive agreements. Two cases from the 1980s indicate support for the institution, although they by no means gave the President a blank check. Dames & Moore v. Regan74 upheld a Treasury regulation intended to implement the Algiers Accords, the agreement that traded U.S. diplomats held hostage in Iran for Iranian assets frozen in the United States.75 The Court agreed unanimously that the Executive could issue the regulation, even though it believed that no statute authorized the regulation in toto and that the regulation had a substantial impact on private interests otherwise protected by law.76 The opinion relied heavily on a long historical tradition of tacit congressional support for executive settlement of property disputes resulting from a revolutionary regime change. The opinion unambiguously endorsed the legitimacy of a sole executive agreement as a concept, although its narrow reasoning left uncertain how broad this power is. Weinberger v. Rossi,77 a unanimous decision handed down a few months later, complemented Dames & Moore by indicating a rather relaxed approach to the question of upstream legislative authorization of a subsequent executive agreement. Congress in 1944 authorized the Executive to negotiate with the Philippines to obtain military bases, and a Military Base Agreement ensued shortly after the latter’s independence. In 1968 the two nations negotiated a supplemental agreement covering labor issues at 68 69 70 71 72 73

74 75

76 77

Goldwater v. Carter, 444 U.S. 996 (1979). Id. at 1007 (Brennan, J., dissenting). Id. at 1002 (Rehnquist, J., concurring in the judgment). Id. at 997 (Powell, J., concurring). Id. at 1007 (Blackmun, J., dissenting in part). There may be little practical difference between Brennan’s position (exclusive executive authority) and that of the six Justices who believed that the case was not currently justiciable. Congress could not frame a conflict with the President who terminated a treaty without overriding a veto, a difficult although not impossible task. Hypothetically, a later President might choose to repudiate a predecessor’s termination and enlist a majority of Congress in support. I am unaware, however, of any instance when a President has repudiated a predecessor’s treaty termination, and I suspect that all Presidents zealously preserve the claim to an exclusive termination power. 453 U.S. 654 (1981). To be precise, the dispute involved executive power to annul attachments of assets and to procure the suspension of U.S. lawsuits involving claims against Iran. Without exercising this power, the Executive could not fulfill its obligations under the Algiers Accords. Both Powell and Stevens did not join portions of the majority opinion dealing with Takings Clause issues, but neither objected to the main holding of the case. 456 U.S. 25 (1982).


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the base and providing in particular for preferential hiring of Philippine nationals. In 1971 Congress adopted a law forbidding discrimination against U.S. nationals at military bases but excepting preferences permitted by “treaty.” The Court took for granted that the 1968 labor agreement fell within the terms of the 1944 authorization. Moreover, the Court concluded that the use of the term “treaty” in the 1971 legislation comprised all international agreements, not just those based on Article II of the Constitution. As a result, the discrimination against U.S. nationals survived. The decision suggested that the Court would work hard to sustain international agreements reached by the Executive, even in the face of rather obvious statutory obstacles. Last comes the question of deference to the Executive in the interpretation of treaties. There exists a sound administrative law rationale for such deference. As treaty negotiator, the Executive has superior command of retrospective information about what the parties intended. As the branch responsible for ongoing international relations, it has the best grasp on what the parties currently believe and want. Perhaps more importantly, the government (more precisely, the Office of the Solicitor General) appears before the Court more often than any other litigant. Repeat play can serve as a bonding mechanism, because the player and the Court both know that overreaching and misstatements will have consequences down the line. But complete deference to the Executive in its treaty claims has at least two serious deficiencies: it surrenders the judicial function of holding the parties to the bargain struck, as distinguished from what the current administration desires, and it allows the Executive to decide cases in which it has an immediate interest. Not surprisingly, the Court struggled between the impulse to take advantage of the Executive’s expertise and the imperative of preserving the judicial function. A comprehensive assessment of the Court’s actual deference to the Executive’s views is beyond the scope of this chapter. One can read what the Court says about deference, but taking the Court at its word requires more than a little ingenuousness. Other scholars have relied on close reading of the Court’s rhetorical style in treaty interpretation cases, particularly its invocation of the canon of good faith construction, to draw conclusions about the Court’s reliance on the Executive.78 I am unpersuaded, however, that this approach does an adequate job of distinguishing the kinds of reasoning that the Court finds compelling in treaty interpretation from the after-the-fact rationalization that the Court so frequently supplies for results driven by other factors. Or, one can make a tally of outcomes, which provides crude information but fails to account for other variables affecting judicial decisions. One might make an independent assessment of the credibility of the Court’s arguments, but that merely substitutes the assessor’s perspective for that of the Court. Ultimately, the best one can do is report that the Court often, but not invariably, agreed with the government on treaty interpretation issues and that it occasionally admonished the lower courts to defer to the Executive, but not to surrender their judicial function. For purposes of analysis, it is useful to distinguish cases where the United States was a party from those where it appeared as an amicus. Although never disinterested, the government has a better claim to neutrality in cases where it is not representing itself 78

See Michael Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J. 1885 (2005); David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. Rev. 953 (1994); see also Chapter 6.

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as a client. To be sure, the Court’s rhetoric about deference does not change in these circumstances, but its behavior might. As the discussion below shows, the government had a much higher success rate when it appeared as an amicus, especially if one focuses on cases that did not implicate the public functions of government. First consider the Court’s rhetoric on the proper relationship between the Executive and the judiciary with respect to treaty interpretation. A representative case is Sumitomo Shoji America, Inc. v. Avagliano,79 an employment discrimination suit brought against the wholly owned U.S. subsidiary of a Japanese company. Sumitomo argued that the U.S.-Japan Friendship, Commerce, and Navigation (FCN) Treaty entitled it to prefer its own nationals in employment. The United States as amicus argued that the treaty extended no benefits to a corporation established under U.S. law, even if Japanese nationals had complete ownership of the company. Chief Justice Burger, writing for a unanimous Court, offered two different templates for interpreting the treaty. First the opinion purported to focus on the parties’ intent: “The clear import of treaty language controls unless ‘application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of the signatories.’”80 Then it suggested that the current interpretation of the parties, rather than the meaning attached at the time that the treaty was made, might prevail: “When the parties to a treaty both agree as to the meaning of a treaty provision, and that interpretation follows from the clear treaty language, we must, absent extraordinarily strong contrary evidence, defer to that interpretation.”81 Given the possibility that the government can procure a preferred interpretation from other treaty parties, the latter approach may give the Executive decisive influence over interpretive issues in many cases. Sumitomo was not the first time that the Court indicated it would treat the Executive’s interpretation of a treaty as significant. Typical is the formulation found in Kolovrat v. Oregon: “While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”82 Sumitomo quoted this language.83 On its face, these words suggest considerable executive power. But what is remarkable is the infrequency of these quotes. After Sumitomo, the Court invoked Kolovrat only once more, in a tax treaty case, during the period under study.84 Sumitomo received seven citations during the same period. One of these citations was by a dissenting Justice who objected to the Court’s disagreement with the government’s amicus position, and another was by a dissenter who wrenched Sumitomo’s language out of context to suggest that the government’s interpretation should have no weight.85 79 80 81

82 83 84 85

457 U.S. 176 (1982). Id. at 180. Id. at 185; see also Corbett v. Stergios, 381 U.S. 124 (1965), where the Court in a per curiam opinion reversed a state court decision based on “a construction [of the Greek Friendship, Commerce and Navigation Treaty] confirmed by representations of the signatories whose views were not available” to the state court. 366 U.S. 187, 194 (1961). 457 U.S. at 184–85. United States v. Stuart, 489 U.S. 353, 369 (1989). El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999); Sale v. Haitian Centers Council, 509 U.S. 155, 194 (1993) (Blackmun, J., dissenting) (citing Sumitomo for the proposition that treaty’s plain language prevails, eliding reference to parties’ interpretation); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 151 n.15 (1989) (Brennan, J. dissenting); United States v. Stuart, 489 U.S. 353, 366 (1989); Société Nationale


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Next consider what the Court did, as opposed to what it said. Of the 130 opinions under review (cases where at least one Justice said something about international agreements), in 40 the United States was either a party (27 cases) or an amicus (13 cases), and the majority opinion attached decisive significance to the interpretation of a treaty.86 Of the twenty-seven cases where the United States was a party, the Court sided with government twenty times and rejected some or all of the government’s position seven times. In the thirteen cases where the government appeared as an amicus, it prevailed twelve times.87 Focusing on the government’s eight losses, a pattern of sorts emerges. In FTC v. A.P.W. Paper Co.,88 the government invoked a treaty as a basis for impairing privately held intellectual property; the Court ruled that the treaty had no domestic legal effect. Clark v. Allen89 involved ownership of real estate and personalty in light of a 1923 Treaty of Friendship, Commerce, and Consular Rights with Germany; the government, which succeeded to the rights of German legatees under the Trading with the Enemy Act, got the real estate but lost the personalty. In Warren v. United States,90 the Court disagreed with the government’s interpretation of the Shipowners’ Liability Convention; the government appeared in the role of shipowner defending a tort suit rather than in a public capacity. In United States v. Louisiana,91 the Court rejected the government’s interpretation of the treaty that ended the Mexican War; the stakes were ownership of real estate. In two later cases also called United States v. Louisiana92 as well as United States v. Maine,93 the Court disagreed with the government over the UN Convention on the Territorial Sea and Contiguous Zone; again, the stakes were ownership of real estate. Chan v. Korean Airlines,94 the one case where the Court did not accept a treaty interpretation submitted by the government as amicus, involved the Warsaw Convention and thus the private law rights of an airline customer against a carrier.95 All the cases where the government failed to win the treaty argument, in short, involved property, contract, or tort law issues. None implicated the government’s role as economic regulator or keeper of the peace, international or domestic.

86 87

88 89 90 91 92 93 94 95

Industrielle Aérospatiale v. United States Dist. Ct., 482 U.S. 522, 535 n.19 (1987); O’Connor v. United States, 479 U.S. 27, 33 (1986); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 61, 660 (1985) (citing presidential interpretation included in documents presented to Senate). A complete list is available from the author. In Zschernig v. Miller, 389 U.S. 429 (1968), the government appeared as amicus to argue that the Court had misinterpreted the 1923 German Friendship Treaty in Clark v. Allen, 331 U.S. 503 (1947). Douglas, writing for the majority, declared that the treaty was irrelevant because the outcome rested on the Constitution. Harlan would have embraced the government’s argument. 328 U.S. 193 (1946). 331 U.S. 503 (1947). 340 U.S. 523 (1951). 363 U.S. 1 (1960). 394 U.S. 11 (1969); 470 U.S. 93 (1985). 475 U.S. 89 (1986). 490 U.S. 122 (1989). The United States submitted an amicus brief in six Warsaw Convention cases. Chan, the only case in which its view was rejected, was the only one in which it argued that the treaty did not limit a carrier’s liability. See El Al Israel Airlines v. Tsui Yuan Tseng, 325 U.S. 125 (1999); Zicherman v. Korean Air Lines, 516 U.S. 217 (1996); Eastern Airlines v. Floyd, 499 U.S. 530 (1991); Air France v. Saks, 470 U.S. 392 (1985); Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243 (1984). One might infer that the Court understood the treaty as setting comprehensive limits on carrier liability and embraced the government’s position only when it affirmed this understanding.

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Of the thirty-two cases where the Court accepted the government’s treaty interpretation, fourteen involved traditional government functions, such as criminal justice, immigration control, business taxation, or taxation.96 By way of comparison, in cases involving private interests, the government prevailed eighteen times and suffered a partial or total loss in eight cases. The sample is too small to draw any strong conclusions. It nonetheless appears that, throughout the period under study, the Court collaborated with the government not to let treaty obligations interfere with the public functions of the government. Given the independence that the Court demonstrated when interpreting treaties addressing private functions, however, it seems wrong to infer that excessive deference to the Executive explains this collaboration. In conclusion, it is useful to return to the point made earlier in the chapter: The roles of the federal government, the executive branch in particular, and of treaties differed considerably between the nineteenth century and the second half of the twentieth. Seen in this light, differences in the Court’s treaty jurisprudence, and particularly its deference to the Executive, should not seem surprising. In cases where the Court functioned essentially as it did in the nineteenth century – namely as an arbiter of disputes over property, the interpretation of contracts, and responsibility for physical injuries to persons and property – the Court regarded treaties essentially in the same way as it did during the Marshall era. In other areas, however, the Court showed greater reluctance to interfere with the functioning of the Executive. When it did act, it relied on the Constitution rather than on treaties.

III. Treaties as a Bulwark against the State One of the most important stories about the Court during the first half of the postwar period was its ever-growing role in broadening individual liberty and equality, especially against encroachment by state and local government. The central struggle was that of African Americans to dismantle the segregation regime that operated overtly in the South and more subtly in much of the rest of the country. The Court’s successful, if not necessarily crucial, part in this struggle inevitably made it the venue for pressing other 96

In re Yamashita, 327 U.S. 1 (1946) (war crimes tribunal; 1929 Geneva Convention); Johnson v. Eisentrager, 339 U.S. 763 (1950) (war crimes tribunal; 1929 Geneva Convention); Moser v. United States, 341 U.S. 41 (1951) (eligibility for citizenship; 1850 Swiss Confederation Treaty); Wilson v. Girard, 354 U.S. 524 (1957) (handover to foreign state for criminal proceedings; Japanese SOFA); Maximov v. United States, 373 U.S. 49 (1963) (income tax dispute; 1945 U.K. tax convention); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982) (antidiscrimination in employment; 1953 Japanese FCN treaty); INS v. Stevic, 467 U.S. 407 (1984) (immigration; 1968 Protocol on the Status of Refugees); O’Connor v. United States, 479 U.S. 27 (1986) (tax dispute; 1977 Panama Canal Treaty); United States v. Stuart, 489 U.S. 353 (1989) (tax dispute; 1942 Canadian convention on double taxation); United States v. Alvarez-Machain, 504 U.S. 655 (1992) (criminal justice; 1978 Mexican extradition treaty); Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (immigration; 1968 Protocol on the Status of Refugees); Breard v. Greene, 523 U.S. 371 (1998) (criminal justice; 1963 Vienna Convention on Consular Relations and Optional Protocol); Federal Republic of Germany v. United States, 526 U.S. 111 (1999) (criminal justice; 1963 Vienna Convention on Consular Relations and Optional Protocol); INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (immigration; 1968 Protocol on the Status of Refugees). But cf. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (Court accepts government interpretation of 1968 Protocol but disagrees as to which provisions of the 1980 Immigration Act implement which treaty provisions; section 208(a) of Act allows Attorney General to consider discretionary requests for asylum in cases where alien does not have a right under section 243(h) not to be deported).


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claims by marginalized groups in American society, including political nonconformists, foreign nationals, and others. Given the significance of the Court’s civil rights efforts, one might think that the rise of human rights regimes based on multilateral treaties could have contributed to the project. What the cases indicate instead is a more complex pattern. Early on, litigants, when attacking manifestations of racial segregation, would rely on treaty arguments, typically the UN Charter and the Universal Declaration of Human Rights, as well as constitutional claims.97 These arguments pretty much disappeared once Brown v. Board of Education98 put desegregation on a constitutional footing.99 In a parallel struggle, that against state discrimination that victimized aliens, the Court initially relied on treaties. By the 1960s, however, the Court instead invoked constitutional arguments, first preemption and then the Equal Protection Clause. In addition, the Court initially treated immigration and citizenship issues as resting on treaties and legislation, but by the 1960s constitutional regulation took over. Finally, in a series of death penalty cases late in the period under study, dissenters invoked multilateral treaties as part of a rhetoric of condemnation of capital punishment. Consider first state hostility to aliens. The Supreme Court had gotten into the business of opposing state discrimination against aliens long before the period under study.100 The question facing the postwar Court was not whether such an antidiscrimination principle existed, but how far it extended and whether certain areas of state discretion and control enjoyed exemption from the principle. In Oyama v. California,101 the Court considered a California law forbidding ownership of land by persons ineligible for naturalization. At that time, this rule singled out Japanese nationals for this disability. The statute further imposed escheat to the State when an ineligible Japanese national used artifices to circumvent this rule, such as by putting title in the name of a native-born child. The majority invalidated the statute to the extent it impaired the rights of the citizen children of Japanese parents. Justice Hugo Black, writing for himself and William Douglas, would have gone further to forbid any restrictions on the land ownership of Japanese nationals. In passing, he referred to the UN Charter’s commitment to nondiscrimination on the basis of race as one motivation for this result.102 Justice Frank Murphy, with Wiley Rutledge joining him, also referred to this part of the Charter, stating that the California law “stands as a barrier to the fulfilment of that national pledge.”103 None of these 97 98 99

100 101 102

103

See Michael J. Klarman, From Jim Crow to Civil Rights – The Supreme Court and the Struggle for Racial Equality 183–84, 213 (2004). 347 U.S. 483 (1954). In only one desegregation case did the Court even mention a treaty. In Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70 (1955), the Court heard a challenge to a racially restrictive covenant that invoked the UN Charter as well as the Constitution. The Court dismissed the petition for certiorari as improvidently granted in light of a subsequent state statute that made such covenants prospectively unenforceable. None of the state courts had taken the UN Charter argument seriously, and neither the majority nor the three dissenters (Black, Douglas, and Warren) indicated that they regarded the Charter as relevant. E.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Truax v. Raich, 239 U.S. 33 (1915). 332 U.S. 633 (1948). Id. at 649–50 (Black, J., concurring). For a later case burnishing a constitutional holding with a reference to treaty practice, see Abington School Dist. v. Schempp, 374 U.S. 203, 245 n.10 (1963) (Brennan, J., concurring) (reference to extradition treaties protecting against religious persecution in support of rule invalidating mandatory prayer in public schools under First Amendment). Id. at 673 (Murphy, J., concurring).

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four Justices, however, indicated that the Charter had legal, as opposed to political, significance.104 Other state laws were not racially selective in the manner of California’s land law, but instead discriminated against aliens generally. A common rule in inheritance statutes, for example, conditioned the right of an alien to inherit on the existence of rules in the alien’s domicile country that would allow U.S. nationals to inherit in the same manner. In Clark v. Allen,105 the Court held that the 1923 Friendship, Commerce, and Consular Rights treaty with Germany overrode this condition. Douglas, writing for the majority, concluded that the treaty remained in effect in spite of the war and had not been superseded by the Trading with the Enemy Act. But Douglas also determined that the treaty covered only rights in realty, and thus it allowed California to impose its reciprocity requirement on the inheritance of decedent’s personalty.106 The Court revisited the question of state inheritance law and international treaties in two later cases. Kolovrat v. Oregon107 involved an 1881 treaty with Serbia that gave Yugoslav nationals a right to inherit from U.S. nationals. A unanimous Court ruled that this treaty applied to personalty. It distinguished Clark v. Allen on the basis of the Serbian treaty’s language, which included a broad right to inherit.108 Then, in Zschernig v. Miller,109 the Court returned to the same German treaty that Clark v. Allen had construed in the context of the same Oregon statute that Kolovrat had considered. Justice Harlan argued at length that the Court should abandon Clark v. Allen’s interpretation of that treaty and recognize that it created a general right to inherit.110 But Douglas, writing for the majority, refused to disavow his earlier construction. Instead, he found a new and broader basis for invalidating state reciprocity rules: namely, that they encroached on an exclusive federal domain of foreign affairs. Zschernig’s approach to preemption received considerable criticism.111 But one may regard the argument that States cannot engage in regulation that touches on foreign affairs as absurd and still note the broader point: the Court believed that regulation of state discrimination against aliens should rest on the Constitution, not the disparate and inconsistent web of treaty relations. Three years after deciding Zschernig, the Court launched on a new course. A series of cases beginning with Graham v. Richardson112 found in the Equal Protection Clause a vehicle for determining what state restrictions on aliens could pass muster.113 Ultimately this strand of jurisprudence became understood as a narrower form of preemption, based 104

105 106 107 108 109 110 111 112 113

But see Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1, 69 (2006) (describing Justices as having “invoked U.S. obligations under the UN Charter”); Koh, supra note 5, at 2360 n.76 (characterizing the four dissenters as suggesting that the law violated U.S. obligations under the Charter). 331 U.S. 503 (1947). The German treaty did not establish a right to inherit realty as such, but rather a right of a foreign beneficiary of a will to put the real estate up for sale and to claim the proceeds. 366 U.S. 187 (1961). Id. at. 195–96. 389 U.S. 429 (1968). Id. at 445–57 (Harlan, J., concurring). See, e.g., Goldsmith, supra note 9, at 1670–80. 403 U.S. 365 (1971). Other cases in this line include In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1973); Examining Bd. of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976); Nyquist v. Mauclet, 432 U.S. 1 (1977); Foley v. Connelie, 435 U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido, 454 U.S. 432 (1982).


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not on exclusive federal control over foreign affairs, but rather the primary responsibility of the national government to set the terms under which aliens are admitted to the country.114 This doctrine subsumed Clark v. Allen and Kolovrat, sidelining both cases as precedents. A similar pattern exists in more general dormant preemption cases challenging nondiscriminatory state burdens on business transactions in which aliens have an interest. Dormant foreign commerce preemption, like federal preemption generally, enjoyed an unsteady life, as the Court veered between a preference for state autonomy and one for national uniformity. Most of the battles involved state taxation. In no case did the Court strike down a state tax because it conflicted with an international treaty, although in at least some cases a treaty was arguably relevant.115 In some cases the Court saw the lack of such a conflict as one of several grounds for upholding the tax. In particular, Wardair Canada, Inc. v. Florida Department of Revenue116 challenged a state tax on the sale of aviation fuel to planes flying international routes. Itel Containers v. Huddleston117 attacked a state tax on leases of containers for international shipping. In each case, the Court noted that a treaty addressed taxation of the industry in question but did not bar a state sales tax. Rather than regarding the treaties as preempting the field of taxation, both cases viewed state authority to impose nondiscriminatory taxes as unlimited except where a treaty expressly provided otherwise. The tax cases, taken alone, indicate that the Court generally rejected the application of field preemption in areas where a treaty adverted to a particular set of commercial transactions. But the few decisions not involving taxation muddy the waters. In Ray v. Atlantic Richfield Co.,118 the Court ruled that some, but not all, of Washington’s regulations of shipping in Washington’s harbors were preempted by federal regulations enacted under the authority of the Port and Waterways Safety Act of 1972. The regulations 114

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See Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 Stan. L. Rev. 1069 (1979). In Toll v. Moreno, 458 U.S. 1 (1982), the Court struck down an in-state tuition preference that excluded residents whose parents worked for international organizations. The Court ruled that the immigration statute governing the visas for employees of these organizations, as well as the treaties creating the international organizations, preempted state regulation of the rights and privileges attributable to residency (as distinguished from citizenship). Toll marks the shift from equal protection to preemption as the constitutional tool of choice for dealing with discrimination against aliens. See Braniff Airways, Inc. v. Neb. State Bd., 347 U.S. 590 (1954) (rejecting challenge to state taxation of flight equipment used in commercial flights; Court noted that federal government had exclusive sovereignty over national airspace by virtue of various treaties and general international law); Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979) (finding local excise tax on ocean-borne cargo containers to be an unwarranted burden on foreign commerce; Court noted that two tax treaties with Japan exempted the containers from import duties and income tax, but drew no inference from these treaties that other taxes might be permitted); Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159 (1983) (rejecting argument that apportioned state income tax on domestic corporation’s foreign commerce revenue did not violate foreign commerce clause; Court noted that the model U.S. tax treaty used a different allocation method for federal income taxation, but observed that no treaty in force prevented the States from applying the apportionment mechanism); Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298 (1994) (upholding California’s apportioned income tax on foreign corporations; Court gave no weight to negotiating history of U.S.-U.K. tax treaty, which reflected executive branch opposition to California’s method of apportionment). Among these cases, Japan Line stands out for drawing no negative inference from the existence of treaty language addressing related taxes. One might infer that the later cases, as well as the Court’s earlier decision in Braniff, have rendered Japan Lines something of a dead letter. 477 U.S. 1 (1986). 507 U.S. 60 (1993). 435 U.S. 151 (1978).

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originally sought to conform U.S. law to obligations assumed under the 1973 International Convention for the Prevention of Pollution from Ships, but later added rules that went beyond what the Convention required.119 The Court upheld those state provisions that did not directly conflict with federal regulations. But in United States v. Locke120 the Court held that the burgeoning federal regulatory structure governing harbor safety had taken over the field and barred any state regulation. The expanded federal regulations reflected additional treaty obligations, but the Court did not decide whether to give preemptive effect to any particular international agreement.121 Finally, in Crosby v. National Foreign Trade Council,122 the Court cited concerns about U.S. obligations with respect to the Uruguay Round government procurement agreement as one reason for preempting Massachusetts’s sanctions on firms doing business with Burma. But the outcome of the case did not turn on this factor.123 A close reading of the Court’s foreign commerce preemption cases suggests that, at least during the period under study, the Court failed to develop a coherent position about how an international obligation might preempt state law. References to treaties seem rather opportunistic and reflective of the Court’s substantive preferences in particular areas of the law. In the case of nondiscriminatory taxation of foreign commerce, for example, the Court seems sensitive to state revenue needs. Other regulatory programs provoked greater suspicion.124 Aside from state and local actions against outsiders, federal hostility to individuals with less than full ties to the United States also attracted the Court’s scrutiny. The cases involved either the right to citizenship or the right of the federal government to exclude otherwise lawful residents. Between 1951 and 1967, the Court moved from a posture of complete deference to the political branches to one of forceful exercise of judicial power. There were treaty issues lurking in these decisions, but mostly they supported the government’s power to regulate rather than undermining it. Once a majority coalesced around constitutional protection of citizenship status, the Court paid no attention to the inconsistent treaties. The first of the cases, Moser v. United States,125 involved a statute denying citizenship to men who had invoked their neutral status as a ground for avoiding conscription during World War II. Moser claimed that an 1850 treaty with the Swiss Federation barred the 119 120 121

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Id. at 162 n.12. 529 U.S. 89 (2000). The United States had argued that several treaties provided an independent ground for preempting Washington’s statute. The Court considered that question premature, but observed: “The existence of the treaties and agreements on standards of shipping is of relevance, of course, for these agreements give force to the longstanding rule that the enactment of a uniform federal scheme displaces state law, and the treaties indicate Congress will have demanded national uniformity regarding maritime commerce.” Id. at 103. 530 U.S. 363 (2000). Justice Souter’s opinion for the majority did not indicate how much independent weight these concerns had and did not determine whether the Massachusetts regime violated U.S. international obligations. Id. at 383. A doctrine akin to preemption is the rule that instrumentalities of the United States enjoy immunity from state taxation absent an express waiver by Congress. In Department of Employment v. United States, 385 U.S. 355 (1966), the Court ruled that the American Red Cross enjoyed the status of a U.S. instrumentality by virtue of both federal statutes and various treaties. Justice Fortas’s brief opinion for a unanimous Court did not indicate that the treaties alone would achieve this result. 341 U.S. 41 (1951).


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United States from putting him to the choice of waiving his neutrality or surrendering the right to become a U.S. citizen. Justice Minton, writing for the majority, argued that the treaty did not address the question of citizenship and intimated that no treaty could: “The qualifications for and limitations on the acquisition of United States citizenship are a political matter which the Treaty did not presume to cover.”126 Shortly after Moser, the Court considered the authority of the government to deport noncitizen members of the Communist Party. Harisiades v. Shaughnessy127 upheld the deportation power. The opinion noted in passing that aliens enjoyed various treaty rights, including exemption from military service, but that the power of the government to exclude was otherwise political and plenary.128 A few years later, Perez v. Brownell129 upheld a statute requiring the forfeiture of citizenship as a penalty for voting in a foreign election. The majority regarded as relevant a series of earlier treaties that had accepted this practice.130 Both cases provoked strong dissents by liberal Justices, but only on constitutional grounds. By the 1960s the Court had rethought the premises of these decisions, but not because of any change in its views about the effect of international law. Kennedy v. MendozaMartinez131 found unconstitutional a statute that took away the citizenship of men who had fled the country to avoid wartime conscription.132 In passing, Justice Arthur Goldberg, writing for the majority, cited the Universal Declaration of Human Rights as evidence of the evil of statelessness, but this reference was a rhetorical flourish rather than a basis for the decision.133 Later decisions extended Mendoza-Martinez by converting a constitutional rule against punishment to one of entitlement to citizenship. Schneider v. Rusk134 invalidated a statute that denaturalized someone who acquired U.S. citizenship and then resided for more than three years in her birth country. Justice Douglas, writing for the majority, invoked substantive due process, declaring the rule so arbitrary as to be unconstitutional. Justice Clark, joined by Harlan and White, argued that the 1868 Bancroft Treaty with the North German Confederation had stipulated the three-year rule codified in the statute.135 The dissenters also referred to the UN Convention on the Reduction of Statelessness, which authorized different treatment for native and naturalized citizens.136 These Justices did not believe that either of these treaty sources required a state to impose mandatory 126 127 128

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Id. at 46. The Court ultimately ruled for Moser on the grounds that the Selective Service had not given him proper notice of the consequences of his assertion of exemption from service. 342 U.S. 580 (1952). Id. at 586; cf. Rabang v. Boyd, 353 U.S. 427 (1957) (treaty pursuant to which the United States acquired Philippines did not obligate the United States to give permanent citizenship to Philippine residents, even though they acquired U.S. nationality at that time; independence of Philippines converted nationality of persons born in Philippines to Philippine, even if they were lawful residents of United States at time of independence). 356 U.S. 44 (1958). Id. at 48–49. 372 U.S. 144 (1965). Mendoza-Martinez clarified Trop v. Dulles, 356 U.S. 86 (1958), in which the Court, without a majority opinion, had struck down a statute imposing loss of citizenship on wartime deserters. None of the Justices in that case raised any treaty issues. 372 U.S. at 161 n.16. 377 U.S. 163 (1964). Id. at 172 (Clark, J., dissenting). Id. at 174.

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denaturalization on absent citizens, but in their view the treaties proved the reasonableness of the distinctions made.137 Three years later a majority expanded constitutional protection against loss of citizenship by holding that the Constitution forbade the federal government from taking away a person’s citizenship in any circumstances other than a voluntary relinquishment. Afroyim v. Rusk138 involved the same statute at issue in Perez v. Brownell, which applied to native and naturalized citizens alike. Five justices voted to overrule Perez. Justice Harlan, joined by Justices Clark, Stewart, and White, recapitulated the dissenters’ strategy in Schneider. He noted that the United States had entered into a series of expatriation treaties shortly after the ratification of the Fourteenth Amendment, each of which provided for involuntary denaturalization.139 This invocation of treaty-based international practice proved inadequate to overcome the constitutional sensibilities of the majority. A parallel development involved the extension of jury trial rights to U.S. citizens otherwise subject to court-martial jurisdiction. In Kinsella v. Krueger,140 the Court interpreted the Uniform Code of Military Justice and the various SOFAs as authorizing the court martial of civilian dependents, even in capital cases. Three Justices would have overridden the political branches and insisted on a jury trial, even if that outcome might mean that neither the United States nor the host country could prosecute some offenses.141 After Justice Brennan replaced Justice Minton and Justice Harlan reconsidered the wisdom of his vote with the Krueger majority, the Court heard reargument and in Reid v. Covert reversed itself.142 Two Justices stuck to their reasoning in Krueger, four maintained that the Sixth Amendment right to jury trials extended to all criminal proceedings brought by the United States against its citizens, and Justices Harlan and Felix Frankfurter argued that the jury trial requirement applied to capital cases but not otherwise.143 Finally, in 137

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Shortly thereafter the Court decided Zemel v. Rusk, 381 U.S. 1 (1965), a case attacking the power of the government to deny passport authorization to persons seeking to travel to Cuba. The majority had no difficulty upholding the government’s power to regulate the overseas travel of its citizens. An appeal to the Universal Declaration of Human Rights fell on deaf ears. Id. at 4. Justice Black, in dissent, argued that the State Department’s power derived from an unconstitutional delegation of power. Justice Douglas, joined by Goldberg, argued that the ban violated the First Amendment. Justice Goldberg wrote separately to argue that no statute authorized the restriction and that the Executive lacked inherent authority to regulate in this area. None of the dissenters invoked a treaty or other rule of international law. 387 U.S. 253 (1967). Id. at 290 n.58. 351 U.S. 470 (1956). The Court had to distinguish United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), which had held unconstitutional the extension of court-martial jurisdiction to former servicemen even for crimes committed in a foreign country while in service. Justice Frankfurter refused to join the Krueger majority because he believed the Court had not taken enough time to consider the case. Chief Justice Warren and Justices Black and Douglas dissented. Congress did not establish general federal jurisdiction over crimes committed by military dependents while overseas until 2000. See Glenn R. Schmitt, Closing the Gap in Criminal Jurisdiction Over Civilians Accompanying the Armed Forces Abroad – A First Person Account of the Creation of the Military Extraterritorial Jurisdiction Act of 2000, 51 Cath. U. L. Rev. 55 (2000). The SOFAs generally provided for shared jurisdiction over certain crimes, including those committed against host country nationals, and provided for a process to determine which country would prosecute in those instances. Where a SOFA gave the United States exclusive jurisdiction but, after Covert and Singleton, the government lacked authority to prosecute, the United States had to choose between letting a malefactor go free and waiving its exclusive right so that the host country could prosecute. 354 U.S. 1 (1957). Justice Reed resigned in the interval between the two cases but his replacement, Justice Whittaker, did not take part in the reargued case.


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Kinsella v. United States ex rel. Singleton,144 the Court extended the plurality holding of Reid v. Covert to noncapital cases.145 At one level, these cases reflect a debate about the scope of the Constitution’s protection of individual rights. Were the individual rights provisions inapplicable in territory where the United States does not exercise sovereignty, the question of the basis of the government’s authority to use courts martial would not arise. But, as Harlan’s position in particular illustrates, the constitutional domain need not be binary. The scope of the jury trial right might turn on the nature and strength of the countervailing governmental interest. Consider what the government had at stake: no less than the capacity to obtain basing rights and therefore to exert postwar geopolitical power. Access to foreign bases depends in part on the ability of the United States to minimize the cost to the host. According immunity from local judicial process to members of the U.S. military and their dependents would amount to a significant surrender of sovereignty by the host, but submission of these people to local justice might be unacceptable politically back home. Consigning them to court-martial jurisdiction offered the least costly compromise. The Court’s insistence on jury trials, especially in noncapital cases, thus threatened to unravel a set of international bargains that facilitated the flexing of America’s international muscle. Seen in this light, the cases suggest a strong preference for the constitutional civil rights project, just getting underway at the time, even in the face of competing international relations and military interests. Another factor may have influenced the Krueger-Covert-Singleton trilogy. The Bricker Amendment had consumed the attention of the political branches since Republicans captured the Presidency and Congress in 1953.146 Conservative Republicans, enraged by what they saw as the foreign policy blunders of the Roosevelt and Truman administrations, allied themselves with southern Democrats, concerned as always with the preservation of segregation, to propose a series of constitutional amendments that would limit both treaty making and the domestic legal force of treaties. The most serious proposal failed by one vote to capture two-thirds of the Senate in 1954. One strand of the argument for the amendment was that the hierarchy between the Constitution and treaties was unclear. Covert addressed the hierarchical question directly. By unambiguously subordinating international agreements to the Constitution, it took the wind from the sails of Senator Bricker and his supporters. The Court nowhere alluded to this debate, but it seems reasonable to surmise that Harlan and the Covert plurality took it into account and shaped their decision accordingly. To the extent that the Bricker affair influenced Covert and Singleton, their disregard of the military necessity issue may seem less significant. What the Bricker debate put at stake was the viability of the treaty process itself. By subordinating treaties to individual rights provisions of the Constitution, the Court bolstered the President’s authority to negotiate and enter into treaties, conditioned on the consent of the Senate. If preserving 144 145

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361 U.S. 234 (1960). Justice Clark wrote Singleton, even though he had written the majority opinion in Krueger and dissented in Covert. Justices Frankfurter and Harlan dissented based on the reasoning of their concurring opinions in Covert. The leading study of this episode is Duane Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s Political Leadership (1988). For the particulars of the 1954 vote, see Robert A. Caro, The Years of Lyndon Johnson – Master of the Senate 527–41 (2002).

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this authority meant diminishing slightly the President’s power to station troops around the world, the sacrifice may have seemed worth it. The disagreement between the liberal plurality in Covert and Harlan and Frankfurter was simply over how much of a price to pay.147 Toward the end of the period under study, a few of the Justices began to reconsider the relationship between treaties and constitutional doctrine. Particularly in death penalty cases, opponents of capital punishment found themselves stymied by the evolution of Eighth Amendment jurisprudence, which since 1976 had condoned executions. International practice, however, had moved toward blanket condemnation of capital punishment, mostly in multilateral treaties to which the United States was not a party. In none of the cases did a Justice argue that international law obligated the United States to outlaw the death penalty, but some Justices did maintain that constitutional developments should reflect changes in international attitudes.148 This last development adds an ironic twist to the story of treaties as a bulwark of protection against the state. For many years, treaties authorized governments to do things, such as involuntary denaturalization, that the Court came to see as unconstitutional. Only when constitutional arguments ran out of steam did Justices seeking to expand constitutional protection for individual rights return to international law, and then to portray treaties as evidence of international practice, rather than to argue about treaty obligation. Such a use of treaties seems more sociological than legal, although hardly unique in its commingling of sociological insights with doctrinal innovation.

IV. Treaties as Private Law I have left to last the discussion of cases involving disputes over the ownership of property (especially realty), contract, and liability for physical injuries to property or person. Of all the cases where the Court or one of its members invoked a treaty, these are the most numerous. They are also the cases where the Court found it easiest to derive a rule of 147

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The core proposition in Covert – that constitutional protection of individual rights, largely the domain of the judiciary, trumps treaty provisions – remained good law even after the Warren Court revolution had run its course and the scope and diversity of constitutional protection had expanded enormously. In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down under the First Amendment a ban on picketing near an embassy. It rejected the argument that the ban was necessary to fulfill U.S. commitments under the Vienna Convention on Diplomatic Relations. The Court relied on the hierarchical principle articulated by Covert, rather than on a fine parsing of the Vienna Convention that might have reconciled its invalidation of the picketing ban with the treaty. For the argument that the Boos Court suggested that in some circumstances the First Amendment might give way to treaty-based interests, see Cleveland, supra note 104, at 68–69. Burger v. Kemp, 483 U.S. 776, 823 n.5 (1987) (Powell, J., dissenting) (invoking International Covenant on Civil and Political Rights and American Convention on Human Rights in the course of criticizing effectiveness of counsel in juvenile death penalty case); Thompson v. Oklahoma, 487 U.S. 815, 831 n.34 (1988) (plurality opinion) (invoking International Covenant on Civil and Political Rights, American Convention on Human Rights, and Geneva Convention Relative to the Protection of Civilian Persons in Time of War as evidence of trend away from juvenile death sentences); Stanford v. Kentucky, 492 U.S. 361, 390 n.10 (1989) (Brennan, J., dissenting) (same); Knight v. Florida, 528 U.S. 990, 995–97 (1999) (Breyer, J., dissenting from the denial of certiorari) (invoking International Covenant on Civil and Political Rights, European Convention on Human Rights, and Universal Declaration of Human Rights as evidence of unconstitutionality of undue delay between sentencing and execution). For a discussion that attributes greater significance to the foreign and international law materials cited in these cases than I do, see Cleveland, supra note 104, at 72–75.


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decision from a treaty. Many of the disputes involved a statute that incorporated a treaty, but not all did. Here, and only here, do we see the Court using treaties to do real legal work independently of statutory enactments. The clearest instances of the Court using a treaty to derive a rule of decision were six cases applying the Warsaw Convention.149 Each involved a dispute between an air carrier and a customer and turned on the applicability of Convention limitations on carrier liability. Congress did not adopt legislation to implement this Convention, although certain statutorily authorized administrative regulations from time to time incorporated or interpreted portions of it. In the first of the six cases, the Court stated expressly that “no domestic legislation is required to give the Convention the force of law in the United States.”150 In all of the cases the Court used the Convention to displace a more generous rule of recovery that other bodies of law would have afforded. The Warsaw Convention cases are hardly a model of coherent development of international rules under a multilateral treaty. The Court, for example, invoked prior foreign judicial interpretations of the treaty when convenient and disregarded them when it did not like the result.151 It, along with the parties and the amicus United States, failed to note the apparent inapplicability of the Convention altogether in two of the six cases it considered.152 These cases do not, in short, provide much support for the argument that the Supreme Court brings special competence and insight to the resolution of treaty disputes. But these cases nonetheless demonstrated that the Court did not altogether reject treaties as a source of law in appropriate cases. As already noted, in three cases the Court enforced treaty terms involving the duties owed by a shipowner to a crew member.153 These opinions, although not fulsome, suggest that the presence of admiralty jurisdiction gave the Court greater freedom to choose which rules of decision to apply and that picking rules contained in a treaty was acceptable. As in the Warsaw Convention cases, these decisions demonstrated the Court’s comfort with the application of treaties where appropriate, but did not indicate a broad predisposition to invoke treaty law. In other cases involving private parties the Court assumed that a treaty might supply a rule of decision, although in each it ultimately deemed the treaty inapplicable. Société Nationale Industrielle Aérospatiale v. U.S. District Court154 ruled that the Hague 149

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See El Al Israel Airlines v. Tsui Yuan Tseng, 325 U.S. 125 (1999); Zicherman v. Korean Air Lines, 516 U.S. 217 (1996); Eastern Airlines v. Floyd, 499 U.S. 530 (1991); Chan v. Korean Airlines, 490 U.S. 122 (1989); Air France v. Saks, 470 U.S. 392 (1985); Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243 (1984). Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 254 (1984). Compare Eastern Airlines v. Floyd, 499 U.S. 530, 550–51 (1991) (rejecting interpretation of Supreme Court of Israel), with El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 175–76 (1999) (asserting need to accord great weight to opinions of sister signatories as expressed through their courts); Air France v. Saks, 470 U.S. 392, 404 (1985) (discussing and embracing French judicial decision). The two cases were Zicherman, 516 U.S. 217, and Chan, 490 U.S. 122, both involving flights between Korea and the United States. Until 1998, the United States adhered only to the 1934 Warsaw Convention, while South Korea joined only the 1955 Hague Protocol and not the original version of the treaty. The only court to address the issue determined that this did not suffice to establish treaty relations between the two countries. Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301 (2d Cir. 2000), cert. denied, 533 U.S. 928 (2001). Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156 (1981); Vella v. Ford Motor Co., 421 U.S. 1 (1975); Warren v. United States, 340 U.S. 523 (1951). 482 U.S. 522 (1987).

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Evidence Convention applied to extraterritorial discovery but did not impose a mandatory or exclusive procedure for gathering evidence abroad. Volkswagenwerk Aktiengesellschaft v. Schlunk155 assumed that the Hague Service Convention had direct effect under U.S. law but deemed it inapplicable to service of a foreign corporation’s U.S. subsidiary. Similarly, Sumitomo Shoji America, Inc. v. Avagliano156 assumed that an FCN treaty would apply to a dispute between U.S. and Japanese nationals, but ruled that a Japanese corporation’s U.S. subsidiary did not enjoy any rights or privileges under the treaty.157 In each case, the matter in dispute fell outside the treaty’s scope, as the Court understood it. The previous section described the development of the Court’s approach to conflicts between treaty provisions and state inheritance law.158 As that discussion makes clear, the Court’s earlier inclination to apply treaties directly to a dispute evolved into a constitutional rule protecting aliens from discrimination. In these cases the Court did not back away from treaties because it questioned their legitimacy as a source of a rule of decision, but rather because the treaties were not comprehensive enough to accomplish the desired task. The overwhelming majority of the Court’s private law decisions involved a treaty with a statutory counterpart. Particular statutes produced many cases – the Submerged Lands Act, which the Court interpreted in light of the UN Convention on the Territorial Sea and the Contiguous Zone (Territorial Sea Convention); the Carriage of Goods by Sea Act (COGSA), which enacted the Brussels Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Hague Rules); and the Federal Arbitration Act, which incorporated the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). When deciding cases implicating these treaties, the Court acted essentially the same as when it enforced the Warsaw Convention. It derived rules of decision from the treaties using interpretive techniques that closely paralleled its approach to statutes, recognized the decisions of other nations’ courts when it wished, and invoked the systemic values of the international regime when it found them congenial. Consider the offshore realty cases first.159 In the face of a longstanding dispute between the federal government and the States over control of offshore resources, the Eisenhower administration procured the enactment of the Submerged Lands Act in 1953. Although it adjusted a conflict among sovereigns, the heart of the statute was the elaboration of 155 156 157

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486 U.S. 694 (1988). 457 U.S. 176 (1982). Compare FTC v. A.P.W. Paper Co., 328 U.S. 193 (1946), where the government challenged a trademark on the ground, inter alia, that it conflicted with a treaty obligation of the United States. As noted previously, the Court treated the treaty as addressing the political branches and not the judiciary. See also Sherer v. Sherer, 334 U.S. 343, 364 n.13 (1948) (in resolving interstate conflict over jurisdiction to award divorce decree, Court cited Hague Convention to Regulate Conflicts of Laws and of Jurisdiction in Matters of Divorce and Separation as a model approach but did not follow it). See supra pp. 340–41. One might question the characterization of a dispute in which one or more claimants to title in land is a sovereign as “private.” As noted earlier in this chapter, the very distinction between public and private itself has come under withering fire within the legal academy, and one is hard-pressed to defend the core analytic integrity of the distinction. My point, however, is not analytic but historical. The Court, in confronting these cases, generally invoked principles and arguments that would have fit comfortably within Chief Justice Marshall’s universe. This is a world where common law arguments about property reign and the concept of the administrative state is absent. It is in this limited sense that these cases can count as private.


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rules of ownership of real property. The Court heard its first case under this statute in 1960, where it determined that the treaty ending the Mexican War recognized Texas’s right to submerged land within three leagues, rather than three miles, of its coast.160 The United States then joined the Territorial Sea Convention in 1961. At that point the Court decided that the Convention provided the sort of rules that Congress contemplated when it enacted the 1953 statute.161 It found attractive the idea of relying on a single treaty, rather than parsing the history surrounding each State’s admission to the Union and the preceding treaty framework. Over the ensuing thirty-five years the Court applied the Territorial Sea Convention fifteen times. The United States was a party in all of these cases and lost four times.162 These original-jurisdiction cases were highly fact-specific and defy distillation. The outcomes suggest, however, that the federal government, while enjoying the advantages (and observing the constraints) of a repeat player, did better than the several States, but not by much. No particular vision of substantive justice or ideological commitment can be detected in these decisions. The Court also addressed three other sovereign land disputes in which the Territorial Sea Convention did not apply. Two cases involved the special legal regime governing the admission of California to the Union, under which claims derived from the treaty with Mexico through which the United States acquired that territory had to be perfected through a statutory process.163 The remaining dispute involved the river border between Texas and Louisiana and turned on the treaties that constituted those States.164 Contracts for international carriage by sea, unlike those for air carriage, turn on a federal statute, namely COGSA. For reasons that remain obscure, the United States chose this method to comply with its obligations under the Hague Rules, rather than simply ratifying the treaty as it did with the Warsaw Convention. The Court decided two cases under COGSA. In Robert C. Herd & Co. v. Krawill,165 the Court ruled that COGSA’s limitation-of-liability provisions do not extend to a stevedore who acts as an independent contractor apart from the carrier. The Court carefully parsed the decisions

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United States v. Louisiana, 363 U.S. 1 (1960). The Court said: “It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea and the Contiguous Zone, approved by the Senate and ratified by the President, provides such definitions. We adopt them for purposes of the Submerged Lands Act.” United States v. California, 381 U.S. 139, 165 (1965). The losses were United States v. Maine, 475 U.S. 89 (1986); United States v. Louisiana, 470 U.S. 93 (1985); United States v. Maine, 469 U.S. 504 (1985); United States v. Louisiana, 394 U.S. 11 (1969). The victories were United States v. Alaska, 521 U.S. 1 (1997); United States v. Alaska, 503 U.S. 569 (1992); United States v. California, 447 U.S. 1 (1980); United States v. Louisiana, 446 U.S. 253 (1980); Texas v. Louisiana, 426 U.S. 465 (1976) (as intervenor); United States v. Florida, 425 U.S. 791 (1975); United States v. Alaska, 422 U.S. 184 (1975); United States v. Louisiana, 394 U.S. 1 (1969); United States v. Louisiana, 389 U.S. 155 (1967); United States v. California, 382 U.S. 448 (1966); United States v. California, 381 U.S. 139 (1965). The Court dismissed one other case involving the Convention on procedural grounds. United States v. Louisiana, 485 U.S. 88 (1988) (Mississippi’s objections to Special Master’s report were premature). United States v. California, 436 U.S. 32 (1978); Summa Corp. v. California, 466 U.S. 198 (1984). Texas v. Louisiana, 410 U.S. 702 (1973). In United States v. Fullard-Leo, 331 U.S. 256 (1947), the Court applied the pre-annexation rules governing Hawaiian land ownership. The Court looked to cases decided under the 1898 Treaty of Paris governing Spanish interests in the Philippines for guidance, but based its decision on general property law involving private ownership. 359 U.S. 297 (1959).

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of British Commonwealth courts to locate its ruling within their mainstream.166 In Vimar Seguros y Reasseguros, S.A. v. M/V Sky Reefer,167 the Court determined that the mandatory liability provisions of COGSA did not make unenforceable an agreement to submit claims to arbitration. Again, the Court surveyed the decisions of other jurisdictions to determine that no court had held a forum selection clause to constitute a prohibited “lessening” of the carrier’s liability for negligence.168 Vimar Seguros, by interpreting COGSA and the Hague Rules as tolerating arbitration clauses, avoided a possible conflict with the Federal Arbitration Act, one portion of which implements the New York Convention. The result, however, certainly leaned in the direction of that instrument, which generally promotes international arbitration of commercial disputes. Two earlier decisions expressed a strong preference for arbitration and the systemic importance of the New York Convention. Scherk v. Alberto-Culver Co.169 enforced an arbitration clause covering the sale of a business, even though the disappointed buyer alleged violations of the Securities Exchange Act of 1934. Justice Stewart, writing for the majority, asserted: A parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate [the orderliness and predictability essential to any international business transaction], but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages.170

A decade later the Court extended Scherk to a case where a franchisee claimed that its contractual obligations, including the obligation to arbitrate all disputes with the franchisor, resulted from violations of the Sherman Act.171 Were the arbitration to ignore the antitrust questions, the Court suggested, a later judicial proceeding might be justified in disregarding the arbitral award.172 But the public significance of the Sherman Act did not make antitrust claims exempt from arbitration.173 The New York Convention cases make what perhaps is an obvious point: when an international treaty regime reinforced the beliefs of a majority of the Court, and where Congress expressly authorized judicial enforcement of the treaty, the Court put its full 166 167 168

169 170 171 172 173

Id. at 306–08. 515 U.S. 528 (1995). Id. at 536–37. The Court has decided other carrier liability cases within its admiralty jurisdiction without referring to COGSA. Mitchell v. Trawler Racer, Inc., 362 U.S. 539 (1959), ruled that general admiralty law imposed an absolute duty to provide a seaworthy vehicle. Justice Frankfurter, writing in dissent, would have borrowed from the Hague Rules to impose a negligence standard. Black Diamond S.S. Corp. v. Robert Stewart & Sons, Ltd., 336 U.S. 386 (1949), involved a different multilateral treaty, the Brussels Convention for the Unification of Certain Rules Relating to the Limitation of the Liability of Owners of Seagoing Vessels. Belgium, the place of the collision, was a party to this treaty, but the United States was not. The Court did not decide whether this Convention might apply as a matter of conflicts of law, but intimated that the trial court should disregard its provisions in setting the bond that the shipowner must provide as a condition for release of the vessel. 417 U.S. 506 (1974). Id. at 516–17. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). Id. at 638. Two later cases dealt with procedural aspects of arbitration confirmation and enforcement under the Convention. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), held that a federal court had the discretion to dismiss a case for lack of personal jurisdiction over the defendant without also determining whether it had subject matter jurisdiction over the case because of the Federal Arbitration Act. Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 529 U.S. 193 (2000), held that the venue rules for confirmation were liberal and that the first-filer’s choice of venue should be respected.


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weight behind the regime. At least since the 1970s, a majority of the Court consistently expressed broad skepticism about the value of the U.S. approach to civil litigation and some awareness of the extent to which U.S. practice deviated from that of other rich countries.174 The New York Convention reinforced that skepticism by indicating that firms from outside the United States required contractual protection from the excesses (as the Court saw it) of U.S. civil litigation. The decisions, which extend the domain of the Convention beyond its express terms (namely commercial disputes), grew out of an eagerness to serve the regime’s broader purposes in the absence of any obstacles imposed by Congress. There remain a handful of cases where the Court admonished lower federal courts to avoid consideration of treaty issues. All the treaties involved dealt with shared U.S.Canadian management of natural resources. The decisions reflect various procedural concerns rather than any hostility to treaties as such. FPC v. Tuscarora Indian Nation175 held that the Federal Power Commission had the authority to take land belonging to a Native American tribe to implement a treaty governing the flow of water over Niagara Falls. The existence of this condemnation authority turned on interpretation of the authorizing statute rather than the treaty itself. Ohio v. Wyandotte Chemicals Corp.176 withheld the Court’s original jurisdiction over a State’s suit seeking abatement of pollution of Lake Erie. One reason for not acting, the majority argued, was the ongoing work of the International Joint Commission, created by the Boundary Waters Treaty of 1909 to address international pollution of the Great Lakes.177 Lake Carriers’ Ass’n v. MacMullan178 ruled that a federal court had jurisdiction to consider an attack on the validity of a state law regulating pollution of Lake Michigan but should abstain from hearing the case. One basis of the attack on the Michigan law was its alleged inconsistency with the 1909 Treaty.179 Washington v. Washington State Commercial Passenger Fishing Vessels Ass’n180 construed a 1930 fishing treaty with Canada as addressing only the allocation of catch between U.S. and Canadian fishermen and not the allocation among U.S. fishermen. As interpreted, the treaty had no bearing on a Native American claim to the U.S. portion of the catch.181 Andrus v. Allard182 held that regulations implementing a 1918 statute that in turn rested on a migratory bird treaty with Canada did not violate the Fifth Amendment. One cannot divine in these cases either a desire to leverage any of these treaties into an extension of judicial supervision of federal or state action, or hostility to the fundamental purposes of the treaties. Rather, the Court approached the treaties pragmatically, neither going to great lengths to vindicate the international regulatory regimes nor obstructing their core functions. In these cases, as many others, the Court took a minimalist approach to treaties. Taken together, the private law cases give the lie to the claim that throughout the period the Court viewed foreign relations and international law as beyond the province 174 175 176 177 178 179 180 181 182

See, e.g., Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). 362 U.S. 99 (1960). 401 U.S. 493 (1971). Id. at 502–03. 406 U.S. 498 (1972). Id. at 502 n.1. 443 U.S. 658 (1979). Id. at 689–92. 444 U.S. 51 (1979).

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of the courts. To the contrary, when confronted with private law issues, the Court applied some treaties directly and made vigorous use of others when Congress had signaled its preference for that course. When confronting private law claims in which the United States had an interest, the Court retained its independence. Although its decisions did not display special sophistication regarding the intricacies of treaty law, as evidenced in the Court’s failure to detect instances where the United States and another country were not parties to the same multilateral treaty, overall its performance was at least conscientious and competent.

V. Conclusion Just as World War II transformed the United States, the new international environment and the treaties it engendered altered the way in which the Supreme Court went about deciding treaty cases. The Constitution’s directive that treaties constitute “the Law of the Land” did not change, but what it meant to be the law of the land did. In an earlier era, treaties mostly provided rules of decision to enable courts to decide the kinds of cases that common law courts traditionally considered, particularly disputes over the ownership of property, the enforcement of contracts, and compensation for physical injury to property and person. Some of the modern treaties did this too, and they usually received a cordial reception from the Court. But to the extent modern treaties extended into the public realm and indicated some change in the basic structure of the state or in relations between the sovereign and individuals, the Court resisted entering the fray in the absence of strong support from the political branches. Complicating this story was the contemporary transformation of constitutional doctrine and the resulting elevation of the Court’s role in the supervision of both intergovernmental conflicts and the claims of people to liberty and equality. The Court’s constitutional projects dominated the period, leaving treaties behind in many cases. In some areas, such as the right to a jury trial or to maintain U.S. citizenship, international agreements obstructed the new constitutional jurisprudence. To the extent that treaties impeded constitutional development, the Court swept them aside. Only occasionally did a few members of the Court see treaties as an alternative source of the expansion of individual rights that constitutional law previously had achieved. It would be wrong, however, to characterize the Court as hostile or indifferent to the international regimes that treaties established during the postwar years. Where treaties entered into the realm of what once was called private international law, the Court supported and extended the legal systems that they produced. Where treaties addressed the public functions of government, the Court looked for legislative guidance as to how to respond, but did not shrink from applying treaty law in areas where Congress had given direction. The Court did facilitate efforts by the Executive to approach international relations flexibly, as in the executive agreement cases, but even there the Court never surrendered the judicial function of independent review and oversight of the Executive’s projects. Arguably this approach, based though it might be on an old-fashioned view of the judicial function, made it easier for the United States to take part in treaty regimes and to contribute to the growth and significance of international law.

11 Customary International Law in the Supreme Court, 1946–2000 William S. Dodge∗

The story of customary international law in the Supreme Court from 1946 to 2000 is one of both continuity and change. In cases involving the laws of war and state boundary disputes, the Court continued long traditions of interpreting and applying customary international law. But in its most important decision of the period – Banco Nacional de Cuba v. Sabbatino1 – the Court drew back from deciding an issue of customary international law, finding the international law of expropriation too unsettled. Sabbatino was initially seen as a setback for the direct application of customary international law by federal courts. But ironically, it would provide a foundation for a new line of cases directly applying international human rights law, which would begin in the lower courts during this period and finally reach the Supreme Court just after its close. Pouring new wine into an old bottle, the federal courts used the jurisdiction granted by the 1789 Alien Tort Statute2 to apply a customary international law unknown in the eighteenth century. Customary international law was changing during this period. The high positivism of the early twentieth century receded, and arguments based on natural law gained at least a little ground, particularly in the areas of war crimes and human rights. Traditional customary international law rules on the expropriation of alien property came under attack from Communist and newly independent nations, making those rules seem to the Supreme Court unfit for adjudication. At the same time, a new field of human rights law grew out of the post–World War II prosecutions at Nuremberg and gained sufficient acceptance and definition that federal courts would find it capable of application. The understanding of how customary international law fit into the U.S. legal system was also in flux. As earlier chapters have recounted, until 1938 the Supreme Court had applied customary international law as general common law. Could it still do so after Erie Railroad Co. v. Tompkins?3 Was customary international law now to be treated as a part of state common law or as federal common law? In the state boundary cases, the Supreme Court continued to apply customary international law as if nothing had changed. Sabbatino held that the act of state doctrine was federal common law and ∗ 1 2 3

Professor of Law, University of California, Hastings College of the Law. 376 U.S. 398 (1964). 28 U.S.C. § 1350. 304 U.S. 64 (1938). See generally Chapter 7, pp. 243–54.

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strongly suggested that the same was true of customary international law. In the alien tort cases, the lower courts seized on that suggestion. Clearly this was a change, but it was a change to countervail Erie’s change, and whether it was faithful to the history of customary international law in the Supreme Court is something this chapter considers.

I. The Laws of War One of the questions facing the United States and its allies after the surrender of Germany and Japan in 1945 was how to punish violations of the laws of war. The Supreme Court was not called on to apply these laws directly to accused war criminals, for Presidents Roosevelt and Truman chose to use military commissions to prosecute them. Yet the Court had a number of opportunities to construe the laws of war in habeas corpus proceedings challenging the commissions. The allies decided to try major war criminals before International Military Tribunals, convened at Nuremberg and Tokyo. Supreme Court Justice Robert Jackson played a key role at Nuremberg, negotiating the terms of the London Charter and acting as Chief Prosecutor for the United States. These tribunals laid the foundation for international human rights law generally and for the litigation of human rights claims in U.S. federal courts under the Alien Tort Statute. Even before the war’s end, the Supreme Court had addressed the laws of war in Ex parte Quirin, where it decided the habeas petitions on the merits and held that violations of the laws of war by German saboteurs in the United States were properly tried by a military commission.4 After the war, the Court again construed the laws of war in In re Yamashita, this time to establish that a commander could be held responsible for failing to prevent atrocities against civilians and prisoners of war.5 The commanding general of the Japanese army in the Philippines filed a petition for habeas challenging his conviction by a military commission convened there after the war. As in Quirin, the Court addressed the petition on the merits, noting that “the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.”6 The jurisdiction of the commission was limited to violations of the laws of war, so whether Yamashita’s trial was authorized turned on whether his actions constituted such a violation. Although the Japanese army had committed war crimes in the Philippines, Yamashita had not been charged with either committing or ordering such acts. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.7 4

5 6 7

317 U.S. 1 (1942); see Chapter 7, pp. 255–56; Chapter 8, p. 277; see also Carlos M. Vázquez, “Not a Happy Precedent”: The Story of Ex Parte Quirin, in Federal Courts Stories (Vicki C. Jackson & Judith Resnik eds., 2010). 327 U.S. 1 (1946). Id. at 9. Id. at 14–15.


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Relying on U.S. and international practice, as well as the Hague and Geneva Conventions, the Court answered the question in the affirmative: “[T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.”8 Justice Frank Murphy dissented, arguing that Yamashita should not be held responsible for failing to control his troops during a period when the United States had done everything in its power to disrupt that control: “To use the very inefficiency and disorganization created by the victorious forces as the primary basis for condemning officers of the defeated armies bears no resemblance to justice or to military reality.”9 The Supreme Court handled the habeas petitions in Johnson v. Eisentrager10 quite differently. Twenty-one German nationals in China had been convicted by a U.S. military commission in Nanking of violating the laws of war by helping the Japanese army after Germany’s surrender. They were sent to the U.S. military prison at Landsberg, Germany, to serve their time. Writing for the Court, Justice Jackson held that enemy aliens outside the United States had no right to petition for habeas: “We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”11 In Quirin and Yamashita, of course, the Court had addressed the habeas petitions of enemy aliens on the merits. The Court distinguished Quirin on the ground that the petitioners there were within the United States, and Yamashita on the ground that the United States, at the time, exercised sovereignty over the Philippines.12 For good measure, the Court went on to consider the merits of the petitions. “The jurisdiction of military authorities, during or following hostilities, to punish those guilty of offenses against the laws of war is long-established,” Jackson wrote.13 The Germans had been charged with engaging in hostilities against the United States after Germany’s surrender, and “[b]reach of the terms of an act of surrender is no novelty among war crimes.”14 Justice Jackson had some experience with war crimes, having recently served as Chief Prosecutor for the United States at the International Military Tribunal at Nuremberg. Jackson’s role went far beyond that of an ordinary prosecutor. He developed the U.S. position on how the leading Nazis should be prosecuted and negotiated the terms of the London Charter under which they were charged, before assembling and leading the prosecution team.15 In the last year of his life, Jackson wrote that his time at Nuremberg was “the most important, enduring, and constructive work of my life.”16 Nuremberg is 8 9 10 11 12 13 14 15 16

Id. at 15. Id. at 35 (Murphy, J., dissenting). Justice Wiley Rutledge (joined by Murphy) also dissented on the ground that the procedures used by the commission were inadequate. See id. at 41–81 (Rutledge, J., dissenting). 339 U.S. 763 (1950). Id. at 768. See id. at 779–80. Id. at 786. Id. at 787. Justices Hugo Black, William Douglas, and Harold Burton dissented. See id. at 791–98 (Black, J., dissenting). See Bernard D. Meltzer, Robert H. Jackson: Nuremberg’s Architect and Advocate, 68 Alb. L. Rev. 55 (2004). Robert H. Jackson, Introduction, in Whitney R. Harris, Tyranny on Trial: The Evidence at Nuremberg xxxvii (1954). Not every member of the Court agreed about the value of the Tribunal. Chief Justice Stone referred to it in private correspondence as a “high grade lynching party.” See Alpheus Thomas Mason, Extra-Judicial Work for Judges: The Views of Chief Justice Stone, 67 Harv. L. Rev. 193, 212 (1953).

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worth considering in a chapter about customary international law in the Supreme Court for two reasons in addition to Jackson’s role. First, Nuremberg marked an important milestone in customary international law’s shift away from pure positivism and back toward conceptions of natural law that had prevailed early in American history. Second, Nuremberg laid the foundation for modern human rights law, which would find its way into federal courts later in the century. The London Charter established that there would be “individual responsibility” for crimes against the peace, war crimes, and crimes against humanity, irrespective of the defendants’ positions as government officials and regardless of whether the defendants were following orders.17 Both Jackson and the Tribunal were sensitive to the charge that the Charter did not just restate existing law but created new law. In his opening statement, Jackson conceded that there was “no judicial precedent for the Charter,” but insisted that “our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law.”18 The Tribunal characterized the Charter as “the expression of international law existing at the time of its creation; and to that extent . . . itself a contribution to international law.”19 Citing decisions of the U.S. Supreme Court, the Tribunal said it had long been recognized that “international law imposes duties and liabilities upon individuals as well as upon States.”20 There is real doubt that the London Charter accurately reflected the positive law of the time.21 Those who defended the Nuremberg Tribunal often couched their arguments in natural law terms. Professor Quincy Wright, for example, noted that “[t]he assumptions underlying . . . the Charter of the Nuremberg Tribunal are far removed from the positivistic assumptions which greatly influenced the thought of international jurists in the nineteenth century.”22 But Wright argued that pure positivism was not practicable in a system without a central legislative authority. “In such a situation,” Wright wrote, “the law must have within itself the means of its own change, and that element is what the seventeenth century jurists called ‘natural law’ and which in modern terminology can perhaps be better expressed by the word ‘justice’ as interpreted by predominant world opinion.”23 Earlier chapters in this volume have noted a shift from natural law to positivism as the basis for customary international law.24 Scholars began to shift away from rigid international law positivism after World War I,25 but Nuremberg marked an important milestone along the way. “[T]he revival of the authority of natural law,” Professor Hersch Lauterpacht predicted in 1947, “is likely to receive an accession of strength as 17

18 19 20 21

22 23 24 25

Charter of the International Military Tribunal arts. 6–8, 1 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, at 11–12 (1947). 2 id. at 147. 1 id. at 218. 1 id. at 223. See Meltzer, supra note 15, at 60–61; Jonathan A. Bush, “The Supreme. . . . Crime” and Its Origins: The Lost Legislative History of the Crime of Aggressive War, 102 Colum. L. Rev. 2324 (2002); F.B. Schick, The Nuremberg Trial and the International Law of the Future, 41 Am. J. Int’l L. 770 (1947); George A. Finch, The Nuremberg Trial and International Law, 41 Am. J. Int’l L. 20 (1947). Quincy Wright, Legal Positivism and the Nuremberg Judgment, 42 Am. J. Int’l L. 405, 405 (1948). Id. at 407. See Chapter 1, pp. 35–36; Chapter 3, pp. 92–99. See 1 L. Oppenheim, International Law § 59, at 102 (H. Lauterpacht ed., 6th ed. 1947).


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the result of the experience preceding the Second World War.”26 Although the Supreme Court did not expressly address the nature of customary international law between 1946 and 2000, the shift from pure positivism may have made the lower courts more receptive to arguments that human rights norms could be part of customary international law even if they were not always observed in practice.27 Out of Nuremberg grew the modern law of international human rights.28 As Professor Louis Sohn has observed, “The modern rules of international law concerning human rights are the result of a silent revolution of the 1940’s.”29 The Nuremberg trial and subsequent prosecutions under Allied Control Council Law No. 10 provided not just a theoretical justification for international human rights law but also a body of doctrine and precedent to which U.S. courts would turn in cases brought under the Alien Tort Statute.30 The noted alien tort litigator Paul Hoffman has written that Nuremberg’s “idea of individual accountability for international human rights violations is at the core of every Alien Tort Claims Act case.”31

II. State Boundaries The Supreme Court’s tradition of applying customary international law to decide interstate disputes was almost as old as its tradition of applying the customary laws of war.32 The Court’s 1938 decision in Erie Railroad Co. v. Tompkins did not change this. On the same day that Erie proclaimed “[t]here is no federal general common law,”33 the Court held in Hinderlider that “whether the water of an interstate stream must be apportioned between the two States is a question of ‘federal common law’ upon which neither the statutes nor the decisions of either State can be conclusive.”34 During the period from 1946 to 2000, the Supreme Court continued to look to customary international law to resolve boundary disputes between two or more States, or between States and the United States. As in the past, the Court often used customary international law to construe statutes admitting States to the Union and treaties acquiring the territory in the first place, but again as before, it sometimes applied rules of customary international law directly. 26

27 28 29

30 31

32 33 34

Id. § 59, at 103. For a famous exchange on positivism with respect to the domestic law of Nazi Germany, see H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 615–21 (1958); Lon Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630, 648–61 (1958). See infra p. 368. See generally Theodor Meron & Jean Galbraith, Nuremberg and Its Legacy, in International Law Stories 13 (John E. Noyes, Laura A. Dickinson & Mark W. Janis eds., 2007). Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather Than States, 32 Am. U. L. Rev. 1, 1 (1982); see also id. at 9–10 (noting that the Nuremberg and Tokyo Tribunals “completely changed the status of individuals under international law”). See infra p. 372. Paul L. Hoffman, Justice Jackson, Nuremberg and Human Rights Litigation, 69 Alb. L. Rev. 1145 (2005). Hoffman has litigated many cases under the Alien Tort Statute, including Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See Chapter 1, p. 31; Chapter 3, p. 119; Chapter 7, pp. 229–31. 304 U.S. 64, 78 (1938). Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). The Court seems to have assumed that customary international law preempted inconsistent state statutes under the Supremacy Clause of Article VI in state boundary cases, although it never made the point explicit. Outside this context, the relationship between customary international law and state statutes did not arise.

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The discovery of offshore oil and gas fields gave rise to a number of disputes over submerged lands. In United States v. California, the Court held that lands under the three-mile belt extending seaward from the low-water mark belonged to the United States, not to California.35 Because California had been admitted to the Union on an “equal footing” with the original thirteen States, the question turned on whether the American colonies had sovereignty over territorial waters three miles out to sea in 1776. “At the time this country won its independence from England,” Justice Hugo Black concluded, “there was no settled international custom or understanding among nations that each nation owned a three-mile water belt along its borders.”36 The United States had not asserted such a territorial zone until 1793, and the question was still unsettled as a matter of customary international law as late as 1876.37 Moreover, Black observed, “protection and control” of this zone “has been and is a function of national external sovereignty.”38 Thus, “national rights are paramount in waters lying to the seaward in the three-mile belt.”39 Congress disagreed and in 1953 passed the Submerged Lands Act,40 granting the States title to submerged lands up to three geographic miles into the Atlantic and Pacific Oceans and up to three marine leagues into the Gulf of Mexico. Thereafter, the Supreme Court looked to international law mainly to interpret the provisions of that Act. In the next chapter of United States v. California, the Court announced that it would look to the Convention on the Territorial Sea and the Contiguous Zone41 to define terms like “inland waters” left undefined by the Submerged Lands Act.42 To interpret terms undefined by the Convention, like “historic bays,” the Court looked in turn to the rules of customary international law.43 The Supreme Court also looked to customary international law in boundary disputes not covered by the Submerged Lands Act. In Louisiana v. Mississippi, for example, the Court applied the doctrine of thalweg to determine that the boundary between those States, under the statutes admitting them, lay not along the geographic middle of the Mississippi River but along the middle of its main channel of navigation, noting that the doctrine had “roots in international law.”44 The Court applied this doctrine, however, as a default rule subject to change by Congress. “When Congress sufficiently indicates that it intends a different boundary in a navigable river,” the Court held in a different case, “the thalweg rule will not apply.”45 35 36 37 38 39 40 41 42 43

44

45

332 U.S. 19 (1947). Id. at 32. See id. at 33–34. Id. at 34. Id. at 36. 43 U.S.C. § 1301 et seq. Apr. 29, 1958, 516 U.N.T.S. 205 (entered into force Sept. 10, 1964). 381 U.S. 139, 165 (1965). See United States v. Louisiana, 394 U.S. 11, 74–75 (1969) (“Historic bays are not defined in the Convention, and the term therefore derives its content from general principles of international law.”); see also United States v. Maine, 475 U.S. 89, 96 (1986) (looking to customary international law to define claim of “ancient title”); United States v. Louisiana, 470 U.S. 93, 101–02 (1985) (looking to customary international law to define “historic bay”). 466 U.S. 96 (1984); see also Texas v. Louisiana, 410 U.S. 702, 709–10 (1973) (noting that “[t]he doctrine was borrowed from international law”); Iowa v. Illinois, 147 U.S. 1, 7–8 (1893) (“It is therefore laid down in all the recognized treatises on international law, of modern times, that the middle of the channel of the stream marks the true boundary between the adjoining states up to which each state will on its side exercise jurisdiction.”). Texas v. Louisiana, 410 U.S. at 710.


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In New Jersey v. New York, the Supreme Court applied customary international law directly to decide two different claims to the portion of Ellis Island consisting of landfill.46 By compact in 1834, the two States had agreed that the island was part of New York despite its location on New Jersey’s side of the boundary. After 1891 the United States expanded the island’s area from three acres to more than twenty-seven by adding fill to its shoreline, and New Jersey claimed ownership of the filled land. The compact said nothing on this point, so the Court looked to a common law rule derived from customary international law: “We have long recognized that a sudden shoreline change known as avulsion (as distinct from accretion, or gradual change in configuration) ‘has no effect on boundary,’ and that this ‘is the received rule of law of nations on this point, as laid down by all the writers of authority.’”47 “This common-law rule speaks in the silence of the Compact,” the Court said, “and we follow it to conclude that the lands surrounding the original Island remained the sovereign property of New Jersey when the United States added landfill to them.”48 The Court went on to address New York’s claim that the filled land belonged to it by prescription, again applying rules of customary international law. The Court quoted Wheaton’s Elements of International Law to define the doctrine and cited Brownlie, Hyde, Oppenheim, Hall, Moore, Phillimore, and Vattel to establish New York’s evidentiary burden.49 Oppenheim was quoted on the length of time necessary to establish title by prescription.50 In the end, the Court found that New York’s evidence was “too slight to support any finding of prescription.”51 The boundary dispute cases provide another example of continuity – of the Supreme Court uncontroversially applying customary international law to decide a particular category of cases just as it had more than a century before. The state boundary cases continued to flow along their familiar channel despite what Justice Antonin Scalia would later call the “avulsive change” of Erie.52 Only in Hinderlider, decided the same day as Erie, did the Court feel any need to justify its practice by characterizing the applicable law as “federal common law.”53 But Justice John Marshall Harlan II would cite these cases as examples of post-Erie federal common law in Sabbatino to justify the categorization of the act of state doctrine as a rule of federal common law.54

III. Cuba and the Act of State Doctrine In doctrinal terms, the most important Supreme Court decision concerning customary international law during this period was one in which the Court refused to apply that law – Banco Nacional de Cuba v. Sabbatino.55 Sabbatino was viewed initially as a great defeat for customary international law in U.S. courts, but over the longer term it provided a basis for answering the question raised by Erie and for treating customary international law as federal common law. 46 47 48 49 50 51 52 53 54 55

523 U.S. 767 (1998). Id. at 784 (quoting Nebraska v. Iowa, 143 U.S. 356, 361, 362 (1892)). Id. See id. at 786, 787–88. See id. at 789–90. Id. at 790. Sosa v. Alvarez-Machain, 542 U.S. 692, 744 (2004) (Scalia, J., concurring in part). Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). See infra p. 363. 376 U.S. 398 (1964).

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Sabbatino arose from the Castro regime’s expropriation of American-owned businesses in Cuba. Farr, Whitlock & Co., an American commodity broker, had entered a contract to buy sugar from C.A.V., a Cuban company principally owned by Americans. On August 6, 1960, Cuba nationalized a number of American-owned companies, including C.A.V. To obtain release of the sugar, which was sitting on a ship in a Cuban port, Farr Whitlock executed a new contract with the Cuban government. Farr Whitlock clearly owed someone for the sugar, but whom? The answer turned on the validity of Cuba’s expropriation. If it was valid, then Cuba owned the sugar and was entitled to payment; if it was not, then C.A.V. owned the sugar and was entitled to payment. To enforce Cuba’s claim, Banco Nacional brought suit against Sabbatino, who as temporary receiver of C.A.V.’s New York assets held the funds received from Farr Whitlock. Both the District Court and the Second Circuit held that the expropriation violated customary international law and was therefore invalid.56 The Supreme Court reversed, holding that the act of state doctrine barred American courts from questioning the validity of an expropriation of property within its own territory by a recognized foreign government “even if the complaint alleges that the taking violates customary international law.”57 Writing for the Court, Justice Harlan noted that the act of state doctrine was not “compelled either by the inherent nature of sovereign authority . . . or by some principle of international law.”58 The act of state doctrine was not required by the Constitution either, but it did “have ‘constitutional’ underpinnings.”59 He explained: “It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations.”60 Later in the opinion, Harlan assessed the particular competencies of the judiciary and the executive branch with respect to expropriation. Courts were good at applying widely accepted rules to facts. Thus: It should be apparent that the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.61

The problem in this case was that there was little agreement with respect to expropriation. Communist countries and those emerging from colonialism had questioned the traditional U.S. position that a taking was unlawful under international law if it was not for a public purpose, was discriminatory, or was not accompanied by prompt, adequate, and effective compensation.62 “There are few if any issues in international law today on which opinion seems to be so divided,” Harlan wrote, “as the limitations on a state’s power to expropriate the property of aliens.”63 56 57 58 59 60 61 62 63

See Banco Nacional de Cuba v. Sabbatino, 193 F. Supp. 375 (S.D.N.Y. 1961); Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962). 376 U.S. at 428. Id. at 421. Id. at 423. Id. Id. at 428. See id. at 429–30. Id. at 428.


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Justice Harlan also noted that the ability of the judiciary to redress expropriations depended “on the fortuitous circumstance of the property in question being brought into this country.”64 The executive branch, in contrast, could engage in negotiations to obtain compensation for all U.S. citizens and could back its position with the threat of sanctions.65 Harlan was particularly concerned that for courts to assess the validity of foreign acts of state under international law “could seriously interfere with negotiations being carried on by the Executive Branch.”66 Even when the State Department had declared an expropriation to be in violation of customary international law, as it had in this case,67 a court decision so holding “might increase any affront.”68 “Considerably more serious and far-reaching consequences would flow from a judicial finding that international law standards had been met if that determination flew in the face of a State Department proclamation to the contrary.”69 Harlan rejected the suggestion of the New York City Bar Association that U.S. courts should be free to consider the lawfulness of an expropriation under international law unless the executive branch expressly stated that it should not: “Often the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically.”70 If Justice Harlan’s goal was to prevent the courts from undercutting the negotiating position of the executive branch, it is not at all clear that he succeeded. As Justice Byron White noted in his lone dissent, the Court’s statement that international opinion was divided on the rules governing the expropriation of foreign-owned property came perilously close to saying that no such rules existed in customary international law. “I fail to see how greater embarrassment flows from saying that the foreign act does not violate clear and widely accepted principles of international law,” he wrote, “than from saying, as the Court does, that non-examination and validation are required because there are no widely accepted principles to which to subject the foreign act.”71 The Court’s actual holding in Sabbatino was hedged about with qualifications: [R]ather than laying down or reaffirming an inflexible and all-encompassing rule in this case, we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.72

Justice Harlan also tried to make clear that not all areas of customary international law were off limits: “There are, of course, areas of international law in which consensus as to 64 65 66 67

68 69 70 71 72

Id. at 431. See id. at 431, 435–36. Id. at 432. See id. at 402–03 (quoting State Dept. Note No. 397 (July 16, 1960)) (“Our State Department has described the Cuban law as ‘manifestly in violation of those principles of international law which have long been accepted by the free countries of the West. It is in its essence discriminatory, arbitrary and confiscatory.’”) Id. at 432. Id. Id. at 436. Id. at 465 (White, J., dissenting). Id. at 428.

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standards is greater and which do not represent a battleground for conflicting ideologies. This decision in no way intimates that the courts of this country are broadly foreclosed from considering questions of international law.”73 Nevertheless, as Justice White noted, the Court had, “with one broad stroke, declared the ascertainment and application of international law beyond the competence of the courts of the United States in a large and important category of cases.”74 Sabbatino and various amici had urged “that United States courts could make a significant contribution to the growth of international law”75 by having its courts decide questions of expropriation under customary international law, and the Supreme Court’s decision was viewed as a significant defeat.76 A part of the majority opinion, however, would prove unexpectedly helpful to proponents of customary international law over the long term. In Part V, Justice Harlan addressed the question whether federal or state law governed the act of state doctrine under Erie.77 He did not have to answer this question, for (as he noted) New York courts had also adopted an act of state doctrine.78 But answer it he did: However, we are constrained to make it clear that an issue concerned with a basic choice regarding the competence and function of the Judiciary and the National Executive in ordering our relationships with other members of the international community must be treated exclusively as an aspect of federal law. It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins. Soon thereafter, Professor Philip C. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to legal problems affecting international relations. He cautioned that rules of international law should not 73

74

75 76

77 78

Id. at 430 n.34; see also id. at 423 (“it is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances”). There is much more consensus today on the rules governing the expropriation of foreign-owned property, thanks mainly to a network of broadly similar bilateral investment treaties (BITs). See Stephen M. Schwebel, The Influence of Bilateral Investment Treaties on Customary International Law, 98 Am. Soc. Int’l L. Proc. 27 (2004). It is possible, therefore, that the act of state doctrine would no longer bar such a claim. 376 U.S. at 439 (White, J., dissenting). Justice White noted that the Court “has time and again effectuated the clear understanding of the Framers, as embodied in the Constitution, by applying the law of nations to resolve cases and controversies.” Id. at 451–52. He would have allowed the courts to decide whether foreign acts of state violated customary international law unless the State Department filed a specific objection. See id. at 467–72. Id. at 434. See, e.g., Myres McDougal, Act of State in Policy Perspective: The International Law of an International Economy, in Private Investors Abroad – Structures and Safeguards, 327, 341–42 (Virginia Shook Cameron ed., 1966) (observing that the impact of Sabbatino “can only be to embarrass and minimize the indispensable role of national courts in the making and application of international law”); The Aftermath of SABBATINO: Background Papers and Proceedings of the Seventh Hammarskjold Forum 73, 74 (Lyman M. Tondel, Jr. ed., 1965) (remarks of John Stevenson) (“It has been our stated national policy to uphold and strengthen the role of international law. Yet the act of state doctrine cloaks even the most patently illegal international act in the protective veil of domestic legality.”); see also Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Colum. L. Rev. 1907, 1936 (1992) (“The immediate reaction to Sabbatino . . . was outrage – fueled by claims that the Court had made the United States an accomplice of gross violations of international law.”); Harold Hongju Koh, Transnational Public Law Litigation, 100 Yale L.J. 2347, 2363 (1991) (noting that Sabbatino “cast a profound chill upon the willingness of United States domestic courts to interpret or articulate norms of international law”). See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). 376 U.S. at 424–25.


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be left to divergent and perhaps parochial state interpretations. His basic rationale is equally applicable to the act of state doctrine.79

Harlan noted other areas in which the Court, after Erie, had applied federal common law, including interstate water apportionment and boundary dispute cases.80 He also cited a number of constitutional and statutory provisions, including the Alien Tort Statute, “reflecting a concern for uniformity in this country’s dealings with foreign nations and indicating a desire to give matters of international significance to the jurisdiction of federal institutions.”81 In the article cited by the Court, Jessup had argued that Erie involved “purely a matter of domestic law and the holding of the case has no direct application to international law.”82 He noted that “Mr. Justice Brandeis was surely not thinking of international law when he wrote his dictum.”83 Jessup further argued that Erie should not be extended to international law: “It would be as unsound as it would be unwise to make our state courts our ultimate authority for pronouncing the rules of international law.”84 Of course, Sabbatino did not hold that customary international law was federal common law. It held that the act of state doctrine – a doctrine not required by customary international law – was federal common law.85 But it is difficult to read the passage previously quoted as anything but an endorsement of Jessup’s position.86 The Restatement (Second) of Foreign Relations Law, published in 1965, observed that “the holding of the Sabbatino case that Erie v. Tompkins does not apply to the act of state doctrine would appear to apply a fortiori to questions of international law.”87 Two decades later, the Restatement (Third) was even more explicit: “Based on the implications of Sabbatino, the modern view is that customary international law in the United States is federal law and its determination by the federal courts is binding on the State courts.”88 Thus, cases arising under customary international law were within the judicial power of the federal courts under Article III, and customary international law was supreme over state law under the Supremacy Clause of Article VI.89 Sabbatino was hardly the last word on the act of state doctrine.90 Almost immediately, Congress acted to reverse the decision with the Second Hickenlooper Amendment, directing the courts to “giv[e] effect to the principles of international law” in cases of 79 80 81 82 83 84 85

86

87 88 89 90

Id. at 425. See id. at 426–27. For discussion of these cases, see supra pp. 357–59. 376 U.S. at 427 n.25. Philip C. Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int’l L. 740, 741 (1939). Id. at 743; see also Chapter 9, p. 292. Jessup, supra note 82, at 743. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 859 (1997). Bradley and Goldsmith also point out that Sabbatino applied the act of state doctrine to preclude application of customary international law. Id. at 960. For additional arguments that Erie does not apply to customary international law, see Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1830–41 (1998); William S. Dodge, Customary International Law and the Question of Legitimacy, 120 Harv. L. Rev. F. 19, 23–24 (2007). Restatement (Second) of Foreign Relations Law § 3 Reporters’ Note 2 (1965). Restatement (Third) of Foreign Relations Law § 111 Reporters’ Note 3 (1987). See id. § 111(1) & (2). For a summary of later developments, see Detlev F. Vagts, William S. Dodge & Harold Hongju Koh, Transnational Business Problems 77–79 (4th ed. 2008).

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expropriation occurring after January 1, 1959.91 On remand, the district court applied the Amendment to Sabbatino itself, so that C.A.V.’s American owners got paid for the sugar in the end.92 But the Amendment did not accomplish much more than this, for the Second Circuit construed it to apply only to cases (like Sabbatino) where the claimant’s specific property or the proceeds of that property were found in the United States.93 Thus, the act of state doctrine continued to bar most expropriation claims. There was one set of claims for expropriation under customary international law that the Supreme Court did allow to go forward. The Castro regime had expropriated the Cuban assets of various U.S. banks, and these banks attempted to set off the value of these assets against property of the Cuban government held by the banks. The State Department wrote a Bernstein letter94 expressing its view that the act of state doctrine should not apply to counterclaims by American banks in suits initiated by Cuba.95 In First National City Bank,96 the Court allowed a counterclaim for expropriation to go forward but could not agree on a rationale. Three members of the Court relied on the State Department’s letter;97 Justice William Douglas relied on the fact that (irrespective of the State Department’s position) the expropriation was raised as a counterclaim;98 and Justice Lewis Powell found it decisive that adjudication would not interfere with the conduct of foreign relations by the political branches.99 The Court splintered again in the Dunhill case100 over whether there should be a “commercial activities” exception to the act of state doctrine. Four Justices said yes,101 four said no,102 and Justice John Paul Stevens did not reach the question because the mere repudiation of a debt was not an act of state.103 It was not until Kirkpatrick104 in 1990 that the Supreme Court would again reach consensus in an act of state case. There, writing for a unanimous Court, Justice Scalia rejected the notion that the act of state doctrine bars claims that would merely embarrass a foreign government: The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act 91

92 93 94 95 96 97 98 99

100 101 102 103 104

22 U.S.C. § 2370(e). The second proviso allowed the President to waive the Amendment (and thus bar the claim under the act of state doctrine) by filing a suggestion to that effect. This was the position of the New York City Bar Association in Sabbatino, which Harlan expressly rejected. See supra p. 361. See Banco Nacional de Cuba v. Farr, 243 F. Supp. 957 (S.D.N.Y. 1965), aff’d, 383 F.2d 166 (2d Cir. 1967), cert. denied, 390 U.S. 956 (1968). Banco Nacional de Cuba v. First National City Bank of New York, 431 F.2d 394, 399–402 (2d Cir. 1970), rev’d on other grounds, First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). See Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954) (giving effect to a letter from the State Department waiving the act of state doctrine). See Letter from John R. Stevenson, Legal Adviser, U.S. Department of State, to E. Robert Seaver, Clerk of the Court, U.S. Supreme Court (Nov. 17, 1970), reprinted in 10 I.L.M.89 (1971). First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). See id. at 760–70 (plurality opinion). See 406 U.S. at 770–73 (Douglas, J., concurring in the result). See id. at 773–76 (Powell, J., concurring in the judgment). Justice Powell said he probably would have joined Justice White’s dissent in Sabbatino. See id. at 774. Justices William Brennan, Thurgood Marshall, Potter Stewart, and Harry Blackmun dissented on the ground that the act of state doctrine barred the claim. See id. at 776–96 (Brennan, J., dissenting). Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976). See id. at 695–706 (plurality opinion). See id. at 724–30 (Marshall, J., dissenting). See id. at 715 (Stevens, J., concurring). W.S. Kirkpatrick & Co. v. Envt’l Tectonics Corp., 493 U.S. 400 (1990).


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of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.105

The last case arising from Cuba’s expropriations did not reach the Supreme Court until 1983.106 Banco Para El Comercio Exterior de Cuba (Bancec) was a bank created by the Cuban government to act as its agent in foreign trade. In 1960, it sought payment under a letter of credit issued by First National City Bank (Citibank) for a delivery of sugar to the United States. In the meantime, Cuba had nationalized Citibank’s Cuban assets, and Citibank counterclaimed, asserting the right to set off the value of its seized assets. Bancec did not raise the act of state doctrine as a defense,107 probably because the Supreme Court had previously held (on a combination of rationales) that counterclaims were not subject to the doctrine.108 Nor was the claim barred by foreign sovereign immunity, for the Foreign Sovereign Immunities Act (FSIA) contains an exception for counterclaims.109 But Bancec was a separate entity from the Cuban government that had expropriated Citibank’s assets, and the case thus turned on whether its “corporate veil” should be pierced. Bancec argued that this question should be governed by international law.110 Citibank contended that federal common law applied. Quoting The Paquete Habana, the Supreme Court observed that international law “‘is part of our law.’”111 It then announced, “[T]he principles governing this case are common to both international law and federal common law, which in these circumstances is necessarily informed both by international law principles and by articulated congressional policies.”112 Those principles held that “‘[l]imited liability is the rule, not the exception’”113 and that “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.”114 But both U.S. and foreign courts had recognized that the corporate form could be disregarded to prevent injustice.115 In a footnote, the Court quoted at length from the International Court of Justice’s discussion in Barcelona Traction of lifting the corporate veil as a general principle appropriate for application as part of international law.116 As a matter of equity, the Court reasoned, Cuba should not be permitted to bring suit in a U.S. court without also subjecting itself to counterclaims.117 In this case, moreover, Bancec had been dissolved and its assets and claims transferred to other entities that were liable for the expropriation of Citibank’s assets.118 The decision to 105 106 107 108 109 110

111 112 113 114 115 116 117 118

Id. at 409. First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983). See id. at 634 n.28. See supra p. 364. See 28 U.S.C. § 1607; Bancec, 462 U.S. at 620 n.7. Bancec alternatively argued that the question should be governed by Cuban law, but the Court held that under general conflict of laws principles, the law of the state of incorporation governs only a corporation’s internal affairs and not the rights of third parties. See Bancec, 462 U.S. at 621–22. Id. at 623 (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). Id. Id. at 626 (quoting Anderson v. Abbott, 321 U.S. 349, 362 (1944)). Id. at 626–27. See id. at 628–29. See id. at 628 (quoting Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5)). See id. at 630. See id. at 630–31.

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disregard Bancec’s separate status in this case, the Court concluded, was “the product of the application of internationally recognized equitable principles to avoid the injustice that would result from permitting a foreign state to reap the benefits of our courts while avoiding the obligations of international law.”119 In sum, the Cuban expropriation cases were a mixed bag for the direct application of customary international law. Sabbatino’s holding that the act of state doctrine barred the federal courts from considering such claims placed an important category of customary international law beyond their reach, although some expropriation claims did go forward under exceptions created by Congress or the courts. Yet Sabbatino’s holding that the act of state doctrine was federal common law and its apparent endorsement of Jessup’s argument that customary international law was not subject to Erie established a basis for arguing that customary international law should be considered federal common law. The Court’s application in Bancec of “federal common law . . . informed . . . by international law principles”120 provided further support for the notion that the Court would apply customary international law through federal common law. But it was a series of lower court cases decided under the Alien Tort Statute that would provide the most important instances of U.S. courts directly applying customary international law during this period and that would raise most directly the status of that law after Erie.

IV. The Alien Tort Statute The legacy of Nuremberg and the application of customary international law as federal common law came together in 1980, when the Second Circuit decided the seminal case of Filartiga v. Pena-Irala.121 Filartiga held, for the first time, that claims for violations of fundamental human rights like torture could be brought in federal district court under the Alien Tort Statute (ATS).122 The case has been described as the Brown v. Board of Education123 of international human rights litigation.124 It was followed in dozens of cases that, between 1980 and 2000, extended its holding to other international norms such as causing disappearances; cruel, inhuman, and degrading treatment; summary execution; arbitrary detention; forced labor; genocide; and war crimes.125 The Supreme Court did nothing to discourage this trend. It repeatedly declined to grant review in alien tort cases until Sosa v. Alvarez-Machain, decided in 2004.126 Because that case comes

119 120 121

122 123 124 125

126

Id. at 633–34. Id. at 623. 630 F.2d 876 (2d Cir. 1980). For background on Filartiga, see Harold Hongju Koh, Filartiga v. Pena-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture, in International Law Stories 13 (John E. Noyes, Laura A. Dickinson & Mark W. Janis eds., 2007); William J. Aceves, The Anatomy of Torture: A Documentary History of FILARTIGA V. PENA-IRALA (2007). 28 U.S.C. § 1350 (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”). 347 U.S. 483 (1954). See Koh, supra note 121, at 60, 66. See William S. Dodge, Which Torts in Violation of the Law of Nations?, 24 Hastings Int’l & Comp. L. Rev. 351, 351–52 (2001). For a comprehensive treatment of alien tort litigation, see Beth Stephens, Judith Chomsky, Jennifer Green, Paul Hoffman & Michael Ratner, International Human Rights Litigation in U.S. Courts (2d ed. 2008). 542 U.S. 692 (2004).


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after the period under consideration, this chapter necessarily focuses on Filartiga and subsequent decisions in the lower courts.127 The plaintiffs Dolly and Joel Filártiga were the sister and father, respectively, of Joelito Filártiga, a young man who, in retaliation for his father’s political activities, had been tortured to death in Paraguay by Norberto Pena-Irala, an inspector general of police. ˜ Pena ˜ later came to the United States, where he was served with process while awaiting deportation. The ATS, under which this suit was brought, was part of the Judiciary Act of 1789, which established the federal courts,128 but courts had rarely used it as a basis for jurisdiction.129 During the 1970s, the Second Circuit had rejected attempts to invoke the ATS in a number of cases.130 In Vencap the court construed the ATS to apply only to those rules governing the relationship between states or between individuals and foreign states,131 while in Dreyfus the court said that “violations of international law do not occur when the aggrieved parties are nationals of the acting state.”132 Feeling itself bound by these precedents, the district court reluctantly dismissed the Filártigas’ torture claim.133 On appeal, the Second Circuit asked for the views of the Department of State, which filed a memorandum supporting the plaintiffs.134 The memorandum said that “[t]he law of nations in Section 1350 refers to the law of nations as that body of law may evolve” and cited The Paquete Habana as an example of the evolutionary process.135 The view that a state’s treatment of its own citizens was beyond the purview of international law was no longer true, and torture in particular was universally condemned: “While some nations still practice torture, it appears that no state asserts a right to torture its nationals. Rather, nations accused of torture unanimously deny the accusation and make no attempt to justify its use.”136 Judicial enforcement of this norm would not impair American foreign policy, the State Department said. “To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.”137 Quoting 127 128

129

130

131 132 133 134

135 136 137

For essays examining Sosa, see infra Part V.B. See An Act to establish the Judicial Courts of the United States § 9, 1 Stat. 73, 77 (1789) (“the district courts shall . . . have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States”). On the history of the ATS, see William Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467 (1986); William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221 (1996). Only two such cases were reported before 1980. See Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) (child custody case involving a false passport); Bolchos v. Darrell, 3 F. Cas. 810 (D.S.C. 1795) (title to slaves captured on an enemy vessel). See, e.g., Benjamins v. British European Airways, 572 F.2d 913, 916 (2d Cir. 1978) (rejecting ATS claim for willful negligence); Dreyfus v. von Finck, 534 F.2d 24, 31 (2d Cir. 1976) (rejecting ATS claim for expropriation of a citizen’s property); IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (rejecting ATS claim for fraud, conversion, and corporate waste). Vencap, 519 F.2d at 1015. Dreyfus, 534 F.2d at 31. The district court’s opinion was not published but is reproduced in Aceves, supra note 121, at 349–51. See Memorandum for the United States as Amicus Curiae, Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), reprinted in 19 I.L.M. 585 (1980). On the development of the Memorandum, see Koh, supra note 121, at 53–58. 19 I.L.M. at 588. Id. at 598. Id. at 604.

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Sabbatino’s language about the degree of consensus concerning a particular area of international law,138 the memorandum turned Justice Harlan’s argument around: “In this case, not only is there a consensus in the international community that official torture is unlawful, but Paraguay’s Constitution expressly prohibits official torture and Paraguayan law recognizes a tort action as an appropriate remedy.”139 The memorandum cited Sabbatino a final time for the proposition that “[c]ustomary international law is federal law” and argued as a consequence that “[a]n action for tort under international law is therefore a case ‘arising under . . . the laws of the United States’ within Article III of the Constitution.”140 The Second Circuit’s opinion in Filartiga followed the State Department’s memorandum quite closely. Citing The Paquete Habana, Judge Irving Kaufman held that “courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.”141 Relying on international conventions, resolutions of the United Nations General Assembly, national constitutions, and a State Department report, he concluded “that official torture is now prohibited by the law of nations.”142 Filartiga’s method was generally positivist, but not in the narrow sense of looking only to what states actually do. Rather, it placed great weight on what states had said about torture, particularly in multilateral treaties,143 and it observed that “[t]he fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law.”144 Like the State Department’s memorandum, Filartiga invoked Sabbatino to support the direct application of the customary international law prohibition of torture: The case at bar presents us with a situation diametrically opposed to the conflicted state of law that confronted the Sabbatino Court. Indeed, to paraphrase that Court’s statement, there are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state’s power to torture persons held in its custody.145

The court then turned to the question whether a suit between two aliens under customary international law fell within the bounds of Article III. Article III’s grant of alienage jurisdiction does not extend to suits between two aliens,146 so the constitutionality of 138 139 140 141 142 143 144 145

146

See supra p. 360. 19 I.L.M. at 605. Id. at 606 n.49. Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980). Id. at 884. This was consistent with the Supreme Court’s practice reaching back to the nineteenth century. See Chapter 3, pp. 104–05. Id. at 884 n.15. Id. at 881. Kenneth Randall and Chimène Keitner have referred to norms that are effectively unquestionable as “supernorms.” See Kenneth C. Randall & Chimène I. Keitner, Sabbatino, Sosa, and “Supernorms,” in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman 559 (2010). Pena ˜ had not argued before the district court that the act of state doctrine barred the suit, which meant this argument was not before the Second Circuit on appeal. But the court observed, “[W]e doubt whether action by a state official in violation of the Constitution and laws of the Republic of Paraguay, and wholly unratified by that nation’s government, could properly be characterized as an act of state.” Id. at 890. See Mossman v. Higginson, 4 U.S. 12, 14 (1800); Hodgson & Thompson v. Bowerbank, 9 U.S. 303, 304 (1810).


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the Filartiga suit depended on whether it was a case “arising under . . . the Laws of the United States” as that phrase is used in Article III.147 The court concluded that it was: “The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law.”148 The court cited Blackstone and Respublica v. De Longchamps for the proposition that during the eighteenth century the law of nations was considered part of the common law.149 It cited other cases, including The Nereide and The Paquete Habana, for the proposition that federal courts could apply the law of nations even if it had not been incorporated by a statute.150 According to the court, this history showed that the law of nations “became a part of the common law of the United States upon adoption of the Constitution. Therefore, the enactment of the Alien Tort Statute was authorized by Article III.”151 The court recognized that by this reasoning the law of nations might also be considered part of the “laws . . . of the United States” for purposes of § 1331, the general federal question statute,152 but found it unnecessary to resolve this question.153 On remand, the district court awarded $10.4 million in compensatory and punitive damages,154 but by then Pena ˜ had long since been deported. The Alien Tort Statute faced its next big test in Tel-Oren v. Libyan Arab Republic.155 Plaintiffs brought suit against Libya and the Palestine Liberation Organization (PLO) for terrorism, torture, and extrajudicial killing arising from a PLO attack on a civilian bus in Israel. The D.C. Circuit affirmed dismissal of the suit in a brief per curiam opinion, but the three members of the panel could not agree on a rationale and filed three separate concurring opinions.156 Judge Charles Robb concluded that this case, and probably all alien tort cases, involved nonjusticiable political questions.157 But the opinions of Judges Robert Bork and Harry Edwards proved most significant. Judge Bork’s opinion presented a fundamental challenge to Filartiga. According to Bork, Filartiga had overlooked a central question – whether plaintiffs had a cause of action to bring claims for violations of the law of nations.158 The Alien Tort Statute, like § 1331 (the general federal question provision) was “merely a jurisdiction-granting statute.”159 “Neither of those statutes either expressly or impliedly grants a cause of action.”160 In Judge Bork’s view, for separation of powers reasons, it was “essential that

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U.S. Const. art. III, § 2. 630 F.2d at 885. Id. at 886. Id. at 886–87. Id. at 886. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). 630 F.2d at 887 n.22. The Supreme Court has held “that § 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.” Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972). Filartiga v. Pena-Irala, 577 F. Supp. 860 (E.D.N.Y. 1984). 726 F.2d 774 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985). Judges Bork and Edwards agreed that the suit against Libya was barred by the Foreign Sovereign Immunities Act. See id. at 775 n.1 (Edwards, J., concurring); id. at 805 (Bork, J., concurring). See id. at 823–27 (Robb, J., concurring). See id. at 801, 819–20 (Bork, J., concurring). Id. at 810 (Bork, J., concurring). Id. at 811 (Bork, J., concurring).

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there be an explicit grant of a cause of action before a private plaintiff be allowed to enforce principles of international law in a federal tribunal.”161 The conduct of foreign relations was the responsibility of the executive and legislative departments: “That principle has been translated into a limitation on judicial power in the international law area principally through the act of state and political question doctrines. Whether or not this case falls within one of these categories, the concerns that underlie them are present and demand recognition.”162 Plaintiffs argued that federal common law provided a cause of action for international law violations, but according to Judge Bork this argument “reflects a confusion of two distinct meanings of ‘common law.’”163 On the one hand, there was common law like that of contracts or torts “whose origins can be traced to the medieval English legal system.”164 On the other hand, there was “federal common law.”165 To say that international law is part of federal common law is to say only that it is nonstatutory and non-constitutional law to be applied, in appropriate cases, in municipal courts. It is not to say that, like the common law of contract and tort, for example, by itself it affords individuals the right to ask for judicial relief.166

Judge Bork did acknowledge that the common law provided a cause of action for the kinds of offenses cognizable in 1789 – violation of safe conducts, infringement of the rights of ambassadors, and piracy.167 But that did not mean that new violations of customary international law were actionable in the absence of further authorization by Congress. “It is important to remember that in 1789 there was no concept of international human rights,” he wrote.168 That problem is not avoided by observing that the law of nations evolves. It is one thing for a case like The Paquete Habana to find that a rule has evolved so that the United States may not seize coastal fishing boats of a nation with which we are at war. It is another thing entirely, a difference in degree so enormous as to be a difference in kind, to find that a rule has evolved against torture by government so that our courts must sit in judgment of the conduct of foreign officials in their own countries with respect to their own citizens. The latter assertion raises prospects of judicial interference with foreign affairs that the former does not.169

Judge Edwards agreed with Filartiga and disagreed with Judge Bork. The cause of action problem could be solved simply by holding “that section 1350 itself provides a 161 162

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Id. at 801 (Bork, J., concurring). Id. at 801–02 (Bork, J., concurring). The act of state doctrine, Judge Bork noted, “would seem not to apply, in its current formulation, to the alleged acts of the PLO,” which was not a state under international law. Id. at 803. He commented that he might well find the case barred by the political question doctrine if forced to decide, but given the lack of consensus about the doctrine he preferred to rest his decision on another ground. See id. at 803 & n.8. Id. at 811 (Bork, J., concurring). Id. (Bork, J., concurring). Id. (Bork, J., concurring). Id. (Bork, J., concurring). Id. at 813–14 & n.22 (Bork, J., concurring). Id. at 813 (Bork, J., concurring). Id. (Bork, J., concurring).


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right to sue for alleged violations of the law of nations.”170 For Judge Edwards, the problem with this suit was that the PLO was a nonstate actor. Quoting Sabbatino’s language about “the degree of codification or consensus,”171 Judge Edwards found that there was not a sufficient consensus that torture or extrajudicial killing by nonstate actors violated customary international law.172 “Through the 18th century and into the 19th,” he wrote, “writers and jurists believed that rules of international law bound individuals as well as states.”173 But “[i]n the 19th century, the view emerged that states alone were subjects of international law.”174 Only a few individual violations like piracy and slave trading “survived the 19th century swing toward statism.”175 With respect to terrorism, Judge Edwards noted deep divisions in the international community about whether terrorism was a legitimate act of aggression.176 “Given such disharmony, I cannot conclude that the law of nations . . . outlaws politically motivated terrorism, no matter how repugnant it might be to our own legal system.”177 Although Judge Edwards’s opinion opened with a plea “for clarification by the Supreme Court,”178 another two decades would pass before the Court would answer. In the meantime other courts followed Filartiga. They responded to Judge Bork’s concern about a cause of action by holding that the Alien Tort Statute provided not just a grant of jurisdiction but a right to sue as well.179 Congress also responded by passing the Torture Victim Protection Act (TVPA),180 which provided an express cause of action for torture and extrajudicial killing. The congressional committee reports noted that the TVPA was designed to provide the explicit grant of a right to sue that Judge Bork had thought necessary.181 “At the same time,” the House Report continued, “claims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered by section 1350. That statute should remain intact to permit suits based on other

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Id. at 780 (Edwards, J., concurring). Judge Edwards distinguished § 1331’s “arising under” language, which, in his view, required a separate cause of action. See id. at 779. Id. at 792 (Edwards, J., concurring) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)). See id. at 791 n.20, 795 (Edwards, J., concurring). Id. at 794 (Edwards, J., concurring). Id. (Edwards, J., concurring). Id. (Edwards, J., concurring). See id. at 795–96 (Edwards, J., concurring). Id. at 796 (Edwards, J., concurring). Id. at 775 (Edwards, J., concurring). See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996) (“Since Filartiga, a majority of courts have interpreted section 1350 as providing both a private cause of action and a federal forum where aliens may seek redress for violations of international law.”); In re Estate of Marcos Human Rights Litigation (Hilao v. Marcos), 25 F.3d 1467, 1475 (9th Cir. 1994) (concluding that the Alien Tort Statute “creates a cause of action for violations of specific, universal and obligatory international human rights standards”); Xuncax v. Gramajo, 886 F. Supp. 162, 179 (D.Mass. 1995) (“§ 1350 yields both a jurisdictional grant and a private right to sue for tortious violations of international law . . . without recourse to other law as a source of the cause of action.”); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1539 (N.D. Cal. 1987) (“There appears to be a growing consensus that § 1350 provides a cause of action for certain ‘international common law torts.’”); Handel v. Artukovic, 601 F. Supp. 1421, 1427 (C.D. Cal. 1985) (observing that “the ‘violation’ language of section 1350 may be interpreted as explicitly granting a cause of action”). Pub. L. No. 102–256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). See H.R. Rep. 102–367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86; S. Rep. 102–249, at 5 (1991), reprinted in 1991 WL 258662. The reports also noted that they would enhance the remedy available under the ATS by extending a civil remedy for torture and extrajudicial killing to citizens. Id.

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norms that already exist or may ripen in the future into rules of customary international law.”182 In Kadic v. Karadˇzić,183 the Second Circuit took up the question raised by Judge Edwards’s opinion in Tel-Oren – whether some forms of conduct could violate customary international law even when performed by nonstate actors. Victims of human rights violations in Bosnia had brought claims of genocide and war crimes under the ATS against the Bosnian Serb leader Radovan Karadˇzić.184 Writing for the court, Judge Jon Newman noted that Filartiga and Judge Edwards in Tel-Oren had addressed only the question whether torture required state action under customary international law and that neither opinion foreclosed the possibility that private actions might violate other international law norms.185 Relying on UN General Assembly resolutions and the text of the Genocide Convention, the court concluded that “from its incorporation into international law, the proscription of genocide has applied equally to state and non-state actors.”186 The court reached the same conclusion with respect to war crimes: “The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II.”187 Citing the Supreme Court’s opinion in Yamashita, Judge Newman observed that “international law imposes an affirmative duty on military commanders to take appropriate measures within their power to control troops under their command for the prevention of such atrocities.”188 The court distinguished genocide and war crimes from torture and summary execution, which “are proscribed by international law only when committed by state officials or under color of law.”189 In short, whether the ATS provided jurisdiction over nonstate actors depended on the particular violation of customary international law that was alleged. The filing of Doe v. Unocal in 1996 marked the start of a “second wave”190 of alien tort suits against corporate defendants. Plaintiffs alleged that the Burmese government had 182

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H.R. Rep. 102–367, at 4; see also S. Rep. 102–249, at 5 (“At the same time, claims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered by section 1350. Consequently, that statute should remain intact.”). 70 F.3d 232 (2d Cir. 1995). Questions of official immunity have also sometimes arisen in suits under the ATS and TVPA. In Kadic, the Second Circuit recognized the possibility that the defendant might be entitled to immunity as a head of state if recognized as such by the executive branch but refused to speculate about what the executive branch might do in the future. See id. at 248. In Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994), the district court dismissed a suit brought under the TVPA on grounds of head-of-state immunity. Head-of-state immunity is founded in customary international law. See generally Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). In the U.S. legal system, however, it has generally been characterized as a matter of comity. See In re Doe, 860 F.2d 40, 46 (2d Cir. 1988) (“comity is the animating principle upon which head-of-state immunity rests”); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 24 (D.D.C. 1998) (“Like foreign sovereign immunity, head of state immunity is a matter of grace and comity, rather than a matter of right.”); see also Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) (“foreign sovereign immunity is a matter of grace and comity on the part of the United States”). See 70 F.3d at 240. Id. at 242. Id. at 243. Id. at 242. Id. at 243. The court went on to hold that plaintiffs should be allowed to prove in the alternative that Karadˇzić, as President of the unrecognized Bosnian Serb republic of Srpska, was a state official or that he acted under color of Yugoslav law. See id. at 244–45. Curtis A. Bradley, Customary International Law and Private Rights of Action, 1 Chi. J. Int’l L. 421, 421 (2000).


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engaged in forced labor, murder, rape, and torture in connection with the building of a gas pipeline and that Unocal’s involvement in the project rendered it liable for these violations of customary international law. The claims against the Burmese government were dismissed under the FSIA,191 but the claims against Unocal were allowed to continue on various theories of vicarious liability.192 Following the reasoning of Kadic, the district court held that forced labor was a modern form of slave trading that violated customary international law even in the absence of state action.193 On a subsequent motion for summary judgment, however, the district court held that Unocal could not be held liable under international law for the actions of the Burmese military. Looking to the post-Nuremberg decisions of U.S. military tribunals under Control Council Law No. 10, the court concluded that knowledge of and benefit from another’s violation of international law were not sufficient: “Rather, liability requires participation or cooperation in the forced labor practices.”194 The rest of the Unocal story takes us beyond the period under consideration,195 but the issues of vicarious liability – or “aiding and abetting” as it most commonly came to be known – would continue to play a key role in suits against corporations after 2000.196 The Filartiga line of cases constitutes the most significant example of the direct application of customary international law by federal courts during the second half of the twentieth century. It also raises the issues of continuity and change quite directly. Filartiga took an eighteenth-century statute and used it as a vehicle for applying twentiethcentury international law. On the one hand, the First Congress probably could not have predicted that a provision it viewed as providing redress for violations of safe conducts, infringement of the rights of ambassadors, and piracy would one day be used to allow one alien to sue another for torture committed abroad. As we have seen, modern human rights law is very much a twentieth-century development. On the other hand, the Framers clearly understood that customary international law had evolved and would continue to do so.197 “When the United States declared their independence,” Justice James Wilson wrote in Ware v. Hylton, “they were bound to receive the law of nations, in its modern state of purity and refinement.”198 Justice James Iredell told a grand jury in 1794 that the 191 192 193 194 195

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See Doe I v. Unocal Corp., 963 F. Supp. 880, 885–88 (C.D. Cal. 1997). See id. at 890–91. See id. at 891–92. Doe I v. Unocal Corp., 110 F. Supp. 2d 1294, 1310 (C.D. Cal. 2000). A panel of the Ninth Circuit reversed the grant of summary judgment, holding that Unocal could be held liable if it knowingly provided substantial assistance to the program of forced labor. See Doe I v. Unocal Corp., 395 F.3d 932, 947–53 (9th Cir. 2002). The panel opinion was vacated when the Ninth Circuit granted rehearing en banc. See Doe I v. Unocal Corp., 395 F.3d 978 (9th Cir. 2003) (en banc). The case was put on hold, pending the Supreme Court’s consideration of Sosa v. Alvarez-Machain. After Sosa, and shortly before the scheduled date for oral arguments, the parties reached a settlement. See Lisa Girion, Unocal to Settle Rights Claims, L.A. Times at A1 (Dec. 14, 2004). At the request of the parties, the Ninth Circuit subsequently vacated the district court’s opinion granting summary judgment. See Doe I v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) (en banc). See generally Chimène I. Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 61 (2008). For further discussion and citation of authorities, see William S. Dodge, The Paquete Habana: Customary International Law as Part of Our Law, in International Law Stories 175, 194–96 (John E. Noyes, Laura A. Dickinson & Mark W. Janis eds., 2007) [hereinafter Dodge, The Paquete Habana]; Dodge, supra note 128, at 241–43. 3 U.S. 199, 281 (1796) (Wilson, J.); see also id. at 224, 229 (Chase, J.) (referring to “the modern law of nations); id. at 269 (Iredell, J.) (referring to “the most modern notions of” the law of nations).

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law of nations had recently been expounded “with a spirit of freedom and an enlarged liberality of mind entirely suited to the high improvements the present age has made in all kinds of political reasoning.”199 “It does not follow,” Justice Joseph Story explained in 1822, “that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations.”200 The same view is expressed in The Scotia201 and The Paquete Habana.202 Indeed, one continuity in the Supreme Court’s decisions has been their recognition that customary international law can change. But Filartiga also overstated the consistency of U.S. practice with respect to customary international law by glossing over Erie. As a basis for subject matter jurisdiction in a suit between two aliens, the Second Circuit invoked the “arising under” clause of Article III: “The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law.”203 But federal common law is a postErie phenomenon.204 For early Americans, the law of nations was part of the general common law.205 The general common law was neither state nor federal but a shared adjudicatory enterprise.206 As Professor Louis Henkin has written, “[e]arly in our history, the question whether international law was state law or federal law was not an issue: it was ‘the common law.’”207 As an original matter, the constitutional question is not whether the law of nations was “federal common law” – a phrase not found in the Constitution – but whether it was 199

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203 204 205

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James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of South Carolina (May 12, 1794), reprinted in 2 Documentary History of the Supreme Court of the United States, 1789–1800, at 454, 459 (Maeva Marcus ed., 1988); see also Letter from Thomas Jefferson to Thomas Pinckney (May 7, 1793), in 7 The Works of Thomas Jefferson 312, 314 (P.L. Ford ed., 1904) (noting that the law of nations had been “liberalized in latter times by the refinement of manners & morals”). United States v. The La Jeune Eugenie, 26 F. Cas. 832, 846 (C.C.D. Mass. 1822); see also id. (“Some doctrines, which we, as well as Great Britain, admit to belong to the law of nations, are of but recent origin and application. . . .”). 81 U.S. 170, 187 (1872) (“Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation.”). 175 U.S. 677, 686 (1900) (“By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.”); id. at 694 (“But the period of a hundred years which has since elapsed is amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law.”). Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). See generally Henry J. Friendly, In Praise of Erie – And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 405–22 (1964). See Bradley & Goldsmith, supra note 85, at 815, 824 (noting that before Erie “the law of nations . . . had the legal status of general common law”); Koh, supra note 76, at 2354 (noting that “throughout the early nineteenth century, American courts regularly construed and applied the unwritten law of nations as part of the ‘general common law’”). See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984) (“The underlying premise was that the general law was not attached to any particular sovereign; rather, it existed by common practice and consent among a number of sovereigns.”). Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1557 (1984).


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part of “the Laws of the United States” as that phrase is used in Article III.208 It was only after Erie that it became necessary to categorize customary international law as either state or federal common law. Sabbatino strongly suggests that customary international law is a type of post-Erie federal common law.209 If this is so, then it may indeed follow that today cases arising under customary international law arise under “the Laws of the United States” for the purposes of Article III.210 That was the position taken by the State Department in its Filartiga memorandum and is the position of the Restatement (Third).211 But it is a line of argument that is only made necessary by Erie and that would have made no sense before 1938. Ironically, Judge Bork made a bigger hash of the distinction between general and federal common law in Tel-Oren than Judge Kaufman did in Filartiga. Bork’s concern was not Article III but whether the common law provided a cause of action. He distinguished between traditional common law, which provided such causes of action, and federal common law, which did not.212 Bork accepted the plaintiffs’ assertion that customary international law was part of federal common law, but then turned it against them: “To say that international law is part of federal common law . . . is not to say that, like the common law of contract and tort, for example, by itself it affords individuals the right to ask for judicial relief.”213 Historically, however, the law of nations was not part of federal common law, because no such category existed. It was part of the general common law, like contracts and torts, and thus provided the same right to sue.214 This argument was an odd one for Bork, who made so much out of the original understanding in the rest of his opinion.215 By 2000, the Filartiga line of cases was well established. Dozens of cases had followed Filartiga and opened the doors of the federal courts to a variety of international human rights claims. Cases like Kadic helped clarify the customary international law of human rights by distinguishing claims that required state action (like torture and extrajudicial killing) from claims that did not (like genocide and war crimes). Congress had endorsed the Filartiga line in the TVPA, and Judge Bork’s cause of action argument had not been adopted by a single court. Of course, important questions remained – such as whether corporations could be held liable under the ATS for aiding and abetting violations of 208

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211 212 213 214 215

On this question, opinions differ. Compare Curtis A. Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587 (2002) (arguing that the law of nations is not part of the laws of the United States under Article III), with William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002) (arguing that it is). See supra pp. 362–63. Cf. Illinois v. City of Milwaukee, 406 U.S. 91, 100 (1972) (holding that federal common law is part of the “laws of the United States” for purposes of § 1331). However, it may be that customary international law should be considered federal common law for some purposes, but not for others. See William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12 Tulsa J. Comp. & Int’l L. 87 (2004). See supra pp. 363, 368. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 811 (D.C. Cir. 1984) (Bork, J., concurring). Id. See Dodge, supra note 128, at 240 (“The First Congress expected ‘torts in violation of the law of nations’ to be actionable at common law in the same way as other torts.”). See, e.g., Tel-Oren, 726 F.2d at 813 (“It is important to remember that in 1789 there was no concept of international human rights. . . . Clearly cases like this and Filartiga were beyond the framers’ contemplation.”).

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human rights and, if so, under what standard. But the biggest question looming was what the Supreme Court would do when it finally took up an ATS case.

V. Customary International Law and the Executive Branch Suits invoking customary international law against U.S. officials met with much less success than suits invoking customary international law against foreign officials. In SanchezEspinoza v. Reagan, Nicaraguan plaintiffs brought suit under the ATS against President Reagan and other high-level U.S. officials, alleging torts in violation of international law suffered at the hands of the Nicaraguan contras.216 Then-Judge Scalia held that plaintiffs’ claims for money damages were barred by the sovereign immunity of the United States.217 Scalia assumed that jurisdiction under the ATS required a violation of customary international law by a state actor.218 But such a requirement effectively made the suit a challenge to the actions of the United States itself. “It would make a mockery of the doctrine of sovereign immunity,” he reasoned, “if federal courts were authorized to sanction or enjoin, by judgments nominally against present or former Executive officers, actions that are, concededly and as a jurisdictional necessity, official actions of the United States.”219 Judge Scalia distinguished Filartiga, noting that “the doctrine of foreign sovereign immunity is quite distinct from the doctrine of domestic sovereign immunity that we apply here.”220 Still, a few ATS suits have been maintained against domestic officials under the ATS. In Jama v. INS, alien asylum seekers sued the Immigration and Naturalization Service (INS), INS officials, a private contractor, and its employees over conditions at a detention facility in New Jersey.221 The district court dismissed the ATS claims against the INS on sovereign immunity grounds, but allowed the ATS claims alleging cruel, inhuman, and degrading treatment to go forward against INS officials in their individual capacities, 216 217

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770 F.2d 202 (D.C. Cir. 1985). See id. at 207. Judge Scalia conceded that the Administrative Procedure Act (APA) might provide a waiver of sovereign immunity for nonmonetary claims against federal officials. But he asserted that such relief is discretionary and concluded that it would be an abuse of discretion to interfere with sensitive matters of foreign affairs. See id. at 207–08. The Second Circuit would later hold in Kadic that some acts, like war crimes and genocide, violate customary international law even when performed by nonstate actors. See supra p. 372. 770 U.S. at 207. Sovereign immunity has proved a major obstacle to ATS cases against federal officials in the post-2000 period. Under the Westfall Act, enacted in 1988, a suit against the United States under the Federal Tort Claims Act (FTCA) is the exclusive means of recovering money damages for the tortious acts or omissions of a federal employee acting within the scope of his or her employment. See 28 U.S.C. § 2679(b)(1). On certification by the Attorney General that a federal employee was so acting, the United States is substituted as defendant. See id. § 2679(d). But the FTCA requires the exhaustion of administrative remedies as a precondition to suit, see id. § 2675, and does not waive the sovereign immunity of the United States for “[a]ny claim arising in a foreign country.” See id. §2680(k). A number of ATS suits have been dismissed on these bases. See, e.g., Rasul v. Myers, 512 F.3d 644, 660–62 (D.C. Cir.), vacated on other grounds, 129 S. Ct. 763 (2008); see also Karen Lin, An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act, 108 Colum. L. Rev. 1718, 1736 n.135 (2008) (citing cases). 770 U.S. at 207 n.5. In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the Court held, in the context of ATS and TVPA claims, that a foreign official acting in his or her official capacity was not entitled to claim the immunity of a foreign state under the FSIA. 22 F. Supp. 2d 353 (D.N.J. 1998).


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the private contractor, and its employees.222 In Martinez v. City of Los Angeles, the Ninth Circuit assumed that an alien could maintain an action under the ATS against Los Angeles police officers for arbitrary arrest and detention in violation of customary international law, but held on the merits that neither the plaintiff’s arrest nor his detention was arbitrary.223 Outside the context of ATS cases, courts invoked customary international law in a number of cases challenging the detention of Cubans who fled to the United States in 1980 during the Mariel Boatlift. A number of these Cubans were either not paroled into the United States because they had criminal records or had their paroles revoked after committing crimes in the United States. Because Cuba refused to take them back, they faced indefinite detention in U.S. prisons. In Rodriguez-Fernandez v. Wilkinson, the district court granted the habeas petition of one such Cuban. “[E]ven though the indeterminate detention of an excluded alien cannot be said to violate the United States Constitution or our statutory laws,” the court held, “it is judicially remedial as a violation of international law.”224 On appeal, the Tenth Circuit affirmed, not by applying customary international law directly but by construing the immigration statutes not to authorize indefinite detention in violation of customary international law.225 Relying on The Paquete Habana’s dictum about a “controlling executive . . . act,”226 the Eleventh Circuit reached the opposite result in Garcia-Mir v. Meese.227 Although it agreed that Congress had not authorized indefinite detentions, the court held that the Attorney General’s decision to incarcerate the Cubans indefinitely constituted a “controlling executive act” that superseded customary international law’s prohibition of prolonged arbitrary detention.228 Much ink was subsequently spilled on whether the executive branch has authority to violate customary international law without congressional authorization.229 But the issue remained largely theoretical. Garcia-Mir and the district court’s decision it affirmed230 appear to be the only instances in which U.S. courts have held that the executive branch may violate customary international law. Subsequent decisions upholding the detention of Mariel Cubans found that Congress had authorized their detention, at least implicitly,231 and the authority of Congress to 222

223 224 225 226

227 228 229 230 231

See id. at 361–66. The United States ultimately settled the non-ATS claims against the INS, a settlement that the district court held to include the claims against INS officials. See Jama v. INS, 343 F. Supp. 2d 338, 353–55 (D.N.J. 2004). The court granted summary judgment in favor of the facility guards on the ATS claims, but allowed claims against the contractor and its officers to go forward. See id. at 360–61. In the end, all of the plaintiffs settled save one, and the jury found against her on the ATS claim while awarding damages on various domestic law claims. See Jama v. Esmor Correctional Services, Inc., 2008 WL 724337 (D.N.J.). 141 F.3d 1373, 1383–84 (9th Cir. 1998). 505 F. Supp. 787, 798 (D. Kan. 1980). See Rodriguez-Fernandez v. Wilkinson, 654 F. 2d 1382, 1386–90 (10th Cir. 1981). 175 U.S. 677, 700 (1900). For discussion of this phrase, see Chapter 3, pp. 120–22; Dodge, The Paquete Habana, supra note 197, at 198–202; Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 362–67 (2007). 788 F.2d 1446 (11th Cir. 1986). See id. at 1454–55. See, e.g., Agora: May the President Violate Customary International Law?, 80 Am. J. Int’l L. 913 (1986); Agora: May the President Violate Customary International Law? (Cont’d), 81 Am. J. Int’l L. 371 (1987). Fernandez-Roque v. Smith, 622 F. Supp. 887 (N.D. Ga. 1985). See, e.g., Gisbert v. Attorney General, 988 F.2d 1437, 1448 (5th Cir. 1993); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1451 (9th Cir. 1995) (en banc). The issue never reached the Supreme Court.

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supersede customary international law as a rule of decision for U.S. courts is far better established than the authority of the executive branch to do so.232

VI. Conclusion At the close of the twentieth century, human rights litigation dominated the direct application of customary international law. Erie had returned general commercial law (along with the law of torts) to the States.233 Klaxon did the same for the conflict of laws,234 which then underwent a particularly American revolution.235 General maritime law became an enclave of federal common law, but the Supreme Court looked increasingly to state law, rather than international sources, in fashioning its rules.236 No cases involving the laws of war reached the Supreme Court during the second half of the twentieth century, and Sabbatino removed most cases involving foreign investment from the federal docket.237 Even in the area of boundary disputes, federal legislation in the form of the Submerged Lands Act made the direct application of customary international law more infrequent. By the turn of the twenty-first century, however, customary international law seemed to be established as post-Erie federal common law, thanks to Sabbatino and the Restatement (Third). Filartiga and its progeny had held that Article III’s “arising under” grant extended to cases brought under customary international law, even as they shied away from deciding the same question with respect to § 1331. Congress had twice endorsed the direct application of customary international law by the federal courts – by passing the Hickenlooper Amendment after Sabbatino and by passing the TVPA after Tel-Oren. The executive branch had also stated in its Filartiga memorandum that it was appropriate for the federal courts to apply some norms of international human rights law. But there was a lingering concern that this apparent consensus rested on a fragile foundation. All of customary international law’s eggs seemed to have been placed in the human rights basket. The Carter administration had supported Filartiga, but later administrations were lukewarm, ambivalent, or openly hostile. Before Sabbatino, the business 232

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234 235 236

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See William S. Dodge, Customary International Law, Congress, and the Courts: Origins of the Later-inTime Rule, in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts 531 (Pieter H.F. Bekker, Rudolf Dolzer & Michael Waibel eds., 2010). The States proceeded to harmonize much of that law through the Uniform Commercial Code, which was influenced by German law through its architect Karl Llewellyn. See Shael Herman, Llewellyn the Civilian: Speculations on the Contribution of Continental Experience to the Uniform Commercial Code, 56 Tul. L. Rev. 1129 (1982); James Q. Whitman, Commercial Law and the American Volk: A Note on Llewellyn’s German Sources for the Uniform Commercial Code, 97 Yale L.J. 156 (1987). Today, international law governs many contracts between U.S. and foreign parties in the form of the United Nations Convention on Contracts for the International Sale of Goods (CISG), see Vagts, Dodge & Koh, supra note 90, at 272–74, but it is a treaty rather than customary international law. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941). See generally Symeon C. Symeonides, The American Choice-of-Law Revolution: Past, Present and Future (2006). See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864–65 (1986) (“Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.”); see also Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 46 (2d ed. 1975) (noting that reliance on foreign authorities had diminished by the end of the nineteenth century). Instead a web of bilateral investment treaties established a system for protecting foreign investors administered not by national courts but by international arbitral tribunals.


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community saw customary international law as an ally, protecting it from foreign expropriations. After Unocal, corporate counsel more likely saw it as an enemy, potentially subjecting their companies to liability for doing business in places with unsavory governments. What the U.S. Supreme Court would do with an alien tort case when at last it took one would have enormous ramifications for the direct application of customary international law by U.S. courts.

12 International Law as an Interpretive Tool in the Supreme Court, 1946–2000 Melissa A. Waters∗

The post–World War II era was a period of both decline and resurgence for international law as an interpretive tool before the Supreme Court. In statutory interpretation, the role of international law remained in a state of flux. The Charming Betsy canon diminished in importance, as courts increasingly relied on the presumption against extraterritoriality to define the extraterritorial reach of federal statutes. The era also brought dramatic changes in the treatment of foreign sovereigns before the Supreme Court. The Foreign Sovereign Immunities Act (FSIA) attempted to depoliticize immunity determinations by removing them from the purview of the Executive and placing them squarely within the jurisdiction of the courts. The most dramatic developments for international law’s role were in constitutional interpretation. International law notions of territorial sovereignty faded from the Court’s analysis of jurisdictional questions under the Due Process Clause and were replaced by considerations of fairness and reasonableness. The decline of sovereignty was also evident in the decline of the Court’s sovereign powers approach to federal power. However, the period witnessed a surge in the use of international law to interpret individual rights under the Eighth Amendment and other provisions in the Bill of Rights – and in contrast to earlier periods, the use of international law to expand those rights. The era also witnessed the emergence of modern international human rights law in constitutional jurisprudence, as the Court began to rely on new human rights treaties in interpreting the constitutional rights of U.S. citizens.

I. The Territorial Reach of Statutes The post–World War II period was marked by the growing threat of jurisdictional conflict among nation-states, as legislatures and courts alike grappled with increasingly complex international choice of law issues and extraterritoriality concerns. For the U.S. Supreme Court, a key issue during this period was the extraterritorial reach of federal statutes. In the maritime context, the Court utilized the Charming Betsy canon early in the period to avoid jurisdictional conflict with other nations. Charming Betsy enabled the Court to determine the reach of federal statutes by reference to customary international law and ∗

Professor of Law, Washington University School of Law.

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notions of international comity.1 Later in the period, however, the emphasis in maritime law shifted from Charming Betsy and customary international law to clear statement rules and balancing tests to discern the reach of statutes beyond America’s shores. In the non-maritime context, the period was marked by strikingly few references to the Charming Betsy canon. Instead, the Court relied on a presumption against extraterritoriality to limit the reach of federal statutes. As a result, international law per se played little role in defining the reach of federal statutes in the Court’s non-maritime case law (although international comity concerns were still very much in evidence).2

A. The Territorial Reach of Statutes in Maritime Law The apex for the Court’s use of international law in interpreting the extraterritorial reach of statutes came in 1953, with the Court’s landmark maritime decision in Lauritzen v. Larsen.3 At issue in Lauritzen was the extraterritorial application of the Jones Act, which provided a federal cause of action for “any seaman who shall suffer personal injury in the course of his employment.”4 The Court held that the statute did not extend to injuries suffered by a Danish sailor who had been hired in the United States and injured on a Danish ship in Cuban waters.5 The Court rejected a literal reading of the statute on the ground that it would have extended a federal cause of action to “all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation.”6 It noted that the Jones Act, like many other federal statutes addressing maritime issues, was silent as to congressional intent with regard to extraterritorial application.7 According to the Court, legislative silence did not serve as a bar to extraterritorial application of the statute; rather it indicated that Congress intended to “leave application to be judicially determined from context and circumstance.”8 The Court explained that Congress “wrote [the] all comprehending words [of the Jones Act], not on a clean slate, but . . . with regard to a seasoned body of maritime law developed by the experience of American courts long accustomed” to addressing such issues.9 1

2

3 4 5 6 7 8 9

Indeed, several commentators have noted that during the post–World War II period, Charming Betsy “assumed a largely jurisdictional cast.” Ralph G. Steinhardt, The Role of International Law as a Canon of Domestic Statutory Construction, 43 Vand. L. Rev. 1103, 1140 (1990); see also Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479, 490 (1998) (arguing that “the Charming Betsy canon has been used primarily as a braking mechanism . . . to restrain the scope of federal enactments”); Jonathan Turley, Dualistic Values in the Age of International Legisprudence, 44 Hastings L.J. 185, 238 (1983) (noting that courts have applied the canon “largely to avoid jurisdiction or, more recently, to avoid an international conflict by following the least controversial course available under international law”). There were two notable exceptions. See infra pp. 390–91 (discussing Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)); infra pp. 392–93 (discussing Justice Scalia’s dissenting opinion in Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814–16 (1993) (Scalia, J., dissenting). 345 U.S. 571 (1953). 46 U.S.C. § 688 (2006). See Lauritzen, 345 U.S. at 571. Id. at 577. See id. (noting that maritime statutes such as the Jones Act “give no evidence that Congress addressed itself to their foreign application”). Id. Id. at 577.

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In interpreting the Jones Act, the Lauritzen Court explained, courts should take into account the paramount importance of international law in resolving maritime conflicts.10 The law of the sea, the Court noted, is “in a peculiar sense an international law.”11 Moreover, given the serious threat of jurisdictional conflict inherent in the very nature of regulation of seaborne commerce, “courts of this and other commercial nations have generally deferred to a non-national or international maritime law of impressive maturity and universality”12 in applying domestic statutes.13 Having established the special role of international law in the maritime context – and having read into the statute a legislative intent that courts take account of international law in interpreting it – the Court relied on the Charming Betsy canon to limit the extraterritorial reach of the Jones Act.14 It construed the statute as inapplicable to injuries occurring to foreigners outside the territorial sovereignty of the United States.15 As support for this construction, the Court cited the customary international law rule of territorial jurisdiction, “by which one sovereign power is bound to respect the subjects and the rights of all other sovereign powers outside its own territory.”16 The Lauritzen Court did not limit its reliance on international law to a simple recognition of the territoriality principle, however. It went on to develop a multifactor balancing test to govern extraterritorial application of the Jones Act – a test that relied explicitly on customary international law principles.17 For example, the Court named as a relevant factor the law of the flag under which a ship sails, citing it as “perhaps the most venerable and universal rule of [international] maritime law.”18 It also cited the writings of Grotius as support for the notion that the traditional choice of law rule, lex loci delicti commissi, might be of limited usefulness in the maritime context.19 Comity played an important (if somewhat vague) role, both in the Court’s discussion of customary international law and in its articulation of the choice of law balancing test for maritime torts. In the Court’s view, international maritime law was grounded primarily on pragmatic comity concerns, rather than on formalistic notions of state sovereignty. The Court explained that international maritime law “has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities 10

11 12 13

14 15

16 17

18 19

See, e.g., id. (“By usage as old as the Nation, such statutes have been construed to apply only to areas and transactions in which American law would be considered operative under prevalent doctrines of international law.”). Id. at 578. Id. at 581. The court explained that international maritime law “has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations.” Id. at 581–82. See id. at 578; see also supra note 10. See id. at 578 (noting that U.S. maritime jurisprudence had long adopted the principle that “if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting”). Id. at 578 (quoting The Queen v. Jameson (1896), 2 Q.B. 425, 430 (Lord Russell of Killowen)). See, e.g., id. at 582 (“Maritime law, like our municipal law, has attempted to avoid or resolve conflicts between competing laws by ascertaining and valuing points of contact between the transaction and the states or governments whose competing laws are involved.”). Id. at 584; see also id. at 584–86 (discussing application of law of flag factor in choice of law test). See id. at 583 n.15 (citing Grotius’s De Jure Praedae); see also id. at 583–84 (discussing application of “place of the wrongful act” factor in choice of law test).


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of rules designed to foster amicable and workable commercial relations.”20 It noted that international law “does not purport to restrict any nation” from regulating its own maritime commerce as it sees fit. Instead, it “aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own.”21 The Court suggested that its balancing test for choice of law was also consonant with international law’s focus on comity.22 Lauritzen represented the post–World War II period’s high-water mark for the Court’s use of international law to interpret the territorial reach of statutes. It stood for several related propositions. First, legislative silence as to the extraterritorial application of a maritime statute actually conferred on the courts the authority to examine the extraterritoriality question on a case-by-case basis. Second, in employing the multifactor choice of law test articulated in Lauritzen, courts should bear in mind the special role of international law in the maritime context. In keeping with the Charming Betsy canon, courts should strive to interpret domestic statutes consistently with international maritime law wherever possible. Finally, Lauritzen stressed the paramount importance of international comity and avoidance of jurisdictional conflict with other nations in the extraterritorial application of maritime statutes. Lauritzen continues to stand as an important precedent for balancing tests, both in conflict of laws and extraterritorial application of statutes. The ensuing years, however, witnessed the gradual disappearance of both the Charming Betsy canon and international law from the Court’s Jones Act case law. While Lauritzen relied heavily on international law principles that it viewed as being grounded in comity, subsequent Supreme Court opinions emphasized comity, but made no mention of customary international law per se. In Romero v. International Terminal Operating Co.,23 the Court held that the Jones Act did not provide a cause of action for a Spanish sailor injured aboard a Spanish-flag vessel while in American waters.24 In examining the extraterritorial reach of the Jones Act, the Romero Court substituted a general regard for international comity for Lauritzen’s explicit reliance on international maritime law. The Court stressed the need to apply the statute “with due recognition of our self-regarding respect for the relevant interests of foreign nations in the regulation of maritime commerce as part of the legitimate concern of the international community.”25 Accordingly, it noted that, in applying Lauritzen’s multifactor test, courts must “move with the circumspection appropriate when this Court is adjudicating issues inevitably entangled in the conduct of our international relations.”26 A decade later in Hellenic Lines Ltd. v. Rhoditis,27 the Court did not even nod to international comity concerns in interpreting the Jones Act. It held that the act provided a federal cause of action for injuries sustained by a Greek sailor aboard a Greek-flag, Greek-owned ship while in an American port.28 In applying Lauritzen’s multifactor test, 20 21 22 23 24 25 26 27 28

Id. at 581–82. Id. at 582. See supra p. 382. 358 U.S. 354 (1959). See id. at 384. Id. at 382–83. Id. at 383. 398 U.S. 306 (1970). See id. at 310.

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the Court made no mention of international law or the need to interpret the Jones Act with “due recognition of . . . the interests of foreign nations.” Instead, in the hands of the Hellenic Lines Court, Lauritzen became a pure choice of law test seemingly divorced from Lauritzen’s backdrop of international maritime law.29 Even more strikingly, the Court appeared to read constitutional due process concerns into the test. It emphasized that the injured sailor had been a lawful permanent resident alien in the United States for twenty years and, as such, was entitled to “the same constitutional protections of due process that we accord citizens.”30 In light of the plaintiff’s status, as well as the shipowner’s substantial ongoing contacts with the United States, factors pointing against application of the Jones Act to this case were “minor weights in the scales.”31 The Court made no mention whatsoever of international comity or the possibility for international jurisdictional conflict if the statute were applied to the plaintiff’s case. The disappearance of international law and the Charming Betsy canon from the Court’s Jones Act case law did not go unnoticed. Three Justices dissented from the Court’s decision in Hellenic Lines, arguing that the majority had overlooked the true import of Lauritzen and its grounding in both international law and international comity.32 They complained that, in applying Lauritzen’s multifactor test, “courts have become mesmerized by contacts, and . . . have lost sight of the primary purpose of Lauritzen.”33 That purpose, according to the dissent, “was to reconcile the all-embracing language of the Jones Act with those principles of comity embodied in international and maritime law that are designed to ‘foster amicable and workable commercial relations.’”34 Moreover, in the dissent’s view, the obligation to take international law into account had been imposed on the Court by Congress itself. Citing Charming Betsy,35 and referring to Lauritzen’s analysis of legislative intent in the Jones Act, the dissent reminded the Court that “Congress wrote against a backdrop of ‘usage as old as the Nation’”36 that maritime statutes would be interpreted consistently with “prevalent doctrines of international law.”37 In the post–World War II period, the Court developed a second important line of maritime case law involving the application of U.S. labor laws to foreign ships present in U.S. harbors.38 A watershed case was the Court’s 1963 decision in McCulloch v. Sociedad Nacional de Marineros de Honduras.39 At issue was the application of the National Labor Relations Act (NLRA) to the maritime operations of a Honduran registered ship owned by Honduran subsidiaries of an American corporation that employed Honduran sailors. The National Labor Relations Board, taking the position that the vessel was in “commerce” within the meaning of the NLRA, sought to conduct a 29 30 31 32 33 34 35 36 37 38

39

See id. at 308–10 (applying Lauritzen test). Id. at 310. Id. See id. at 311–12 (Harlan, J., dissenting). Id. at 318 (Harlan, J., dissenting). Id. (Harlan, J., dissenting) (quoting Lauritzen, 345 U.S. at 582). See id. at 313 (Harlan, J., dissenting). Id. at 312 (Harlan, J., dissenting) (quoting Laurtizen, 345 U.S. at 577). Id. (Harlan, J., dissenting). See Int’l Longshoremen’s Local v. Ariadne Shipping Co., 397 U.S. 195 (1970); Incres S.S. Co. v. Int’l Mar. Workers Union, 372 U.S. 24 (1963); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963); Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957). 372 U.S. 10 (1963).


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representation election on board the ship.40 The Court held that the Board was without jurisdiction to conduct the election because the NLRA did not apply to matters implicating the “internal discipline and order” of foreign-flag vessels employing foreign sailors.41 The Court also rejected the Board’s methodological approach. In applying the NLRA to foreign-flag vessels, the Board had developed a balancing test – not unlike the test adopted by the Court itself in Lauritzen and its progeny – that weighed the ship’s foreign and American contacts.42 Here, however, the Court rejected the balancing approach, explaining that it “might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports.”43 Such an inquiry, the Court asserted, “would raise considerable disturbance not only in the field of maritime law but in our international relations as well.”44 Instead, the Court adopted a “clear statement” rule for statutes like the NLRA that implicated the “internal management and affairs”45 of “foreign-flag-vessels manned by alien crews.”46 In essence, the Court adopted a clear statement rule, requiring a showing of “the affirmative intention of the Congress clearly expressed”47 to regulate a foreign-flag ship’s internal affairs. The Charming Betsy canon played a key role in the McCulloch Court’s articulation of the so-called internal affairs doctrine and its clear statement rule.48 The Court rejected a literal reading of the statute to include foreign-flag vessels within its coverage, noting that neither the statutory language nor the legislative history of the NLRA provided any evidence of a congressional intent to apply the statute in this way.49 Moreover, it observed that such a construction would be “contrary to the recognition long afforded [to Honduran vessels] not only by our State Department but also by the Congress.”50 It cited a Treaty of Friendship with Honduras protecting the status of Honduran merchant vessels as evidence of U.S. recognition.51 Finally, the Court explicitly relied on Charming Betsy’s admonition “‘that an act of congress ought never to be construed to violate the law of nations if any other possible construction remains.’”52 It emphasized “the wellestablished rule of international law that the law of the flag state ordinarily governs the 40 41 42 43

44 45 46 47 48

49

50 51 52

See id. at 14–15 (describing the Board’s approach). See id. See id. at 18. Id. The Court distinguished its Jones Act case law, noting that its rejection of the balancing test in this context “does not foreclose such a procedure in different contexts, such as the Jones Act . . . where the pervasive regulation of the internal order of a ship may not be present.” Id. at 19 n.9. Id. at 19. It concluded that the Board’s approach “would inevitably lead to embarrassment in foreign affairs and be entirely infeasible in actual practice.” Id. Id. at 20. Id. Id. at 22. The internal affairs doctrine made its first appearance before the Court in 1887, in Mali v. Keeper of the Common Jail (Wildenhus’s Case), 120 U.S. 1 (1887) (interpreting a treaty provision in which the United States had consented to be bound by the internal affairs rule with respect to Belgian merchant vessels). The Court first applied the clear statement rule to statutes implicating the internal affairs doctrine in Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957). See McCulloch, 372 U.S. at 19–20. The Court asserted that, if anything, the legislative history cut against extraterritorial application of the statute in this circumstance. See id. at 20 (noting statement of committee chairman characterizing NLRA as “a bill of rights both for American workingmen and for their employers”). Id. at 20–21. Id. at 21 n.12. Id. at 22 (quoting Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804)).

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internal affairs of a ship”53 and noted that “[t]he possibility of international discord cannot therefore be gainsaid.”54 While international law played an important role in both the “internal affairs” case law and the early Jones Act case law, it led the Court to very different conclusions. In Lauritzen, the Court utilized international law as support for its case-by-case balancing test to determine the extraterritorial application of the Jones Act. In McCulloch and other cases implicating the internal affairs of a foreign ship, however, the Court explicitly rejected the case-by-case approach as potentially placing the United States in violation of its international law obligations. Instead, it utilized international law as support for a clear statement rule against interfering with a foreign ship’s internal affairs. Differences in the strength of the international law rules in question may explain the different outcomes. McCulloch arguably adopted a bright-line rule because international law itself had adopted such a rule: that internal affairs of seagoing vessels are regulated by the law of the flag. By contrast, international law offered no such brightline rule with regard to extraterritorial application of statutes that did not affect the internal affairs of a foreign ship. Thus in Lauritzen, the Court articulated a multifactor balancing test that was in keeping with international law’s more flexible approach in this context. The differences in the two lines of precedent may also be grounded in part on different assumptions regarding legislative intent. Although the statutes in both contexts were silent as to extraterritorial application, the Court seemed to view the NLRA as distinctively “American” in focus, while the Jones Act was at least partly “international.” Thus the Court assumed that Congress enacted the Jones Act against a backdrop of “a seasoned body of [international] maritime law.”55 The NLRA, by contrast, was intended to be “a bill of rights . . . for American workingmen and for their employers.”56

B. The Territorial Reach of Statutes in Non-maritime Contexts In the Court’s post–World War II case law in non-maritime contexts, extraterritoriality determinations became largely unmoored from the Charming Betsy canon and 53 54

55 56

Id. at 20. Id. By contrast, in International Longshoremen’s Local v. Ariadne Shipping Co., 397 U.S. 195 (1970), the Court held that the NLRA applied to a foreign-flag ship’s employment of American longshoremen to work exclusively on American docks. See id. at 200. The Court refused to apply the clear statement rule, holding that application of U.S. law to a dispute over wages of the longshoremen “would have threatened no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law.” Id. Instead, it construed the longshore operations as “commerce” within the meaning of the NLRA and held that they were thus subject to the regulatory power of the National Labor Relations Board. See id. Lauritzen v. Larsen, 345 U.S. 571, 577 (1953). McCulloch, 372 U.S. at 20 (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 144 (1957). Legislative silence as to extraterritorial application also led the Court to very different conclusions regarding the authority of the courts to examine the extraterritoriality question. In interpreting the Jones Act, the Court read legislative silence as an implicit conferral of authority on the courts to make this determination on a case-by-case basis. In the internal affairs case law, however, the Court read legislative silence as requiring a presumption against extraterritoriality, one that could be overcome only by a clear statement of Congress’s intent to apply the statute to foreign ships. Thus in the Jones Act case law, legislative silence empowered the courts to examine the extraterritoriality question. In the internal affairs cases, however, legislative silence required application of a judicial avoidance canon that took the courts out of these sorts of determinations altogether.


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considerations of international law.57 Gone was the Lauritzen notion that Congress intended the courts to determine the extraterritorial reach of statutes on a case-by-case basis, against a backdrop of international law. International comity concerns were still in evidence in the Court’s opinions, but it chose to address these concerns primarily through application of a blanket presumption against extraterritoriality detached from international law.58 The first important ruling of the period to expound on the presumption against extraterritoriality was 1949’s Foley Bros., Inc. v. Filardo.59 The Court held that the federal Eight Hour Law did not apply to an employment contract between the United States and a private contractor for work performed in a foreign country, despite the fact that both the contractor and its employee were U.S. nationals.60 The Court relied on its previous decision in Blackmer v. United States61 for the proposition that “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”62 In the nineteenth century, the presumption against extraterritoriality was closely linked to the Charming Betsy canon: the presumption was justified largely by the Court’s desire to avoid violations of international law.63 This international law rationale waned in the first half of the twentieth century,64 and international law began to be used to support rather than to restrain the extraterritorial application of American law.65 In Foley Bros., however, the Court did not mention international law as a rationale for the presumption against extraterritoriality. In fact, it acknowledged that customary international law would have permitted the United States to apply the Eight Hour Law to the overseas conduct of its own nationals. Instead, the Foley Court offered a new rationale for the presumption against extraterritoriality; it noted, without further explanation, that the presumption “is based on the assumption that Congress is primarily concerned with domestic conditions.”66 Indeed, it viewed a congressional focus on domestic conditions as the “normal” backdrop against which Congress typically legislates. It examined the text of the Eight Hour Law and the legislative history and concluded that there was no evidence “that Congress entertained any intention other than the normal one in this case.”67 Foley thus represented a critical milestone for the Court’s extraterritoriality jurisprudence, further detaching the presumption against extraterritorality from its roots in the Charming Betsy canon. Henceforth, an assumption that Congress is primarily concerned 57

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An exception is Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), in which the Court discussed both the Charming Betsy canon, see id. at 178, and the presumption against extraterritoriality, see id. at 173–74, in examining the extraterritorial application of the Immigration and Nationality Act. The Court examined in detail both the text and negotiating history of the United Nations Protocol and Convention Relating to Protection of Refugees. See id. See, e.g., infra pp. 387–88 (discussing Foley Bros. v. Filardo). 336 U.S. 281 (1949). See id. at 282. The act provided, “Every contract made to which the United States . . . is a party . . . shall contain a provision that no laborer . . . doing any part of the work contemplated by the contract . . . shall be required or permitted to work more than eight hours in any one calendar day. . . . ” 40 U.S.C. § 324 (1940). 284 U.S. 421 (1932). Foley Bros., 336 U.S. at 285 (citing Blackmer v. United States, 284 U.S. 421, 437 (1932)). See Chapter 1, pp. 37–39; Chapter 4, pp. 125–29. See Chapter 8, pp. 259–60. See, e.g., Ford v. United States, 273 U.S. 593, 622–23 (1927) (relying on Moore’s International Law Digest to support the Court’s analysis of the extraterritorial application of domestic law). Id. Id.

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with domestic conditions would serve as the “normal” backdrop against which the Court would interpret federal statutes. Detaching the presumption from its roots in the Charming Betsy canon also had an important consequence. While customary international law on extraterritoriality continued to evolve to permit greater extraterritorial applications of municipal law, the Court’s presumption against extraterritoriality “retain[ed] some of the strong anti-extraterritorial bias of American Banana.”68 As a result, Professor Jonathan Turley notes, “Even though the extraterritorial application of municipal law is no longer viewed as per se violative of international law, [U.S.] courts continue to apply a standard as stringent as the one that applies to such violations.”69 For the next forty years, the Supreme Court fell silent on the application of the presumption against extraterritoriality.70 In the 1980s and 1990s, however, the presumption was once again in vogue, with the Court applying it to cases involving the Foreign Sovereign Immunities Act,71 Title VII,72 the Federal Tort Claims Act,73 and the Immigration and Nationality Act.74 Particularly noteworthy was the Court’s landmark 1991 decision in EEOC v. Arabian American Oil Company (Aramco).75 In Aramco, the Court seemed to transform the presumption against extraterritoriality into a strict clear statement rule. Aramco applied the presumption in holding that Title VII’s antidiscrimination provisions did not extend to the employment practices of U.S. employers who employ U.S. citizens abroad.76 The Court ascribed an international comity rationale to the presumption, asserting that its purpose was “to protect against unintended clashes between our laws and those of other nations which could result in international discord.”77 In the Aramco Court’s hands, however, Foley’s presumption against extraterritoriality morphed into the McCulloch clear statement rule. The Court conflated the clear statement rule that the Court had developed in its maritime “internal affairs” case law with the presumption articulated in Foley. Quoting first Benz and then Foley Bros., the Court asserted that “unless there is ‘the affirmative intention of the Congress clearly expressed,’ we must presume [the statute] ‘is primarily concerned with domestic conditions.’”78 68 69 70

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Jonathan Turley, “When in Rome”: Multinational Misconduct and the Presumption Against Extraterritoriality, 84 Nw. U. L. Rev. 598, 607 (1990). Id. Professor William Dodge has pointed out that “this was not for lack of opportunities.” William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 91 (1998). For example, in Steele v. Bulova Watch Co., 344 U.S. 280 (1952), the Court refused to apply the presumption (over the objections of the dissent) in a case involving extraterritorial application of the Lanham Act. Moreover, during this period “the Court repeatedly denied certiorari as the lower courts expanded the extraterritorial application of the Sherman Act and the Securities Exchange Act.” Dodge, supra, at 91. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440–41 (1989). See EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991). See Smith v. United States, 507 U.S. 197, 203–04 (1993). See Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173–74 (1993). In his opinion concurring in the judgment in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Justice Stevens argued that the presumption should apply to bar application of the Endangered Species Act overseas. See id. at 582–89 (Stevens, J., concurring). 499 U.S. 244 (1991). See id. Id. at 248. Id. (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), and Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)).


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But this was McCulloch’s clear statement rule, with a twist. Aramco elided the Charming Betsy and customary international law considerations on which the Court’s maritime clear statement rule was so clearly grounded. McCulloch had held that a clear congressional statement was required to regulate the internal affairs of foreign vessels, because extraterritorial application of the statute would have violated “the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship.”79 The Aramco Court ignored this rationale and indeed omitted any mention of the special maritime context in which the McCulloch rule was formulated.80 Thus the Court reinforced and strengthened Foley’s detachment of the presumption against extraterritoriality from its roots in the Charming Betsy canon. Three dissenting Justices chided the Aramco majority for conflating the Court’s maritime and non-maritime case law and for pulling the clear statement rule from its moorings in the Charming Betsy canon. The dissent argued that the majority “overstates the strength of the presumption [against extraterritoriality] by drawing on language from cases involving a wholly independent rule of construction:”81 the Charming Betsy canon, which the dissent viewed as being central to McCulloch’s clear statement rule.82 Emphasizing McCulloch’s grounding in international comity and separation of powers concerns, the dissent argued that the clear statement rule should be “reserved for settings in which the extraterritorial application of a statute would ‘implicate sensitive issues of the authority of the Executive over relations with foreign nations.’”83 It concluded, “Nothing nearly so dramatic is at stake when Congress merely seeks to regulate the conduct of US nationals abroad.”84 Later cases backed away from Aramco’s suggestion of a clear statement rule for the presumption against extraterritoriality. In 1993’s Smith v. United States,85 for example, the Court held that the Federal Tort Claims Act (FTCA) does not apply to claims arising out of injuries in Antarctica. The Court described the presumption as requiring “clear evidence of congressional intent to apply the FTCA to claims arising in Antarctica,” and examined both the language and structure of the FTCA and its legislative history for evidence of that intent.86 Finding none, the Court applied the presumption against extraterritoriality to remove “any lingering doubt regarding the reach of the FTCA.”87 The Court also rejected the argument that the presumption should apply only to cases involving the possibility of jurisdictional conflict with foreign nations, which was obviously not present in Antarctica. It implicitly adopted Foley’s assertion that a concern with domestic conditions is the “normal” backdrop against which Congress is presumed to legislate. It asserted that “[t]he presumption is rooted in a number of considerations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns in mind.”88

79 80 81 82 83 84 85 86 87 88

McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963). It described its holding in McCulloch as follows: “[T]his Court refused to find a congressional intent to apply the statute abroad.” Aramco, 499 U.S. at 251. Id. at 264. See id. at 264–65. Id. at 265. Id. 507 U.S. 197, 204 (1993). Id. (emphasis added). Id. Id.

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That same year, in Sale v. Haitian Centers Council, Inc.,89 the Court again applied the presumption to a dispute where there was little possibility of jurisdictional conflict with foreign nations. In Sale, the Court held that the asylum requirements of the 1980 Refugee Act did not extend to aliens interdicted on the high seas.90 The lower court had held that the presumption against extraterritoriality was inapplicable, because there was no risk that the statute’s requirements would conflict with the laws of other nations. It relied on Aramco’s statement that the purpose of the doctrine was “‘to protect against unintended clashes between our laws and those of other nations which could result in international discord.’”91 The Supreme Court rejected this reasoning. It emphasized that “the presumption has a foundation broader than the desire to avoid [jurisdictional] conflict.”92 The Sale Court also retreated from the “clear statement” language in Aramco. Instead, it asserted that courts should look to “all available evidence” – including the statutory text, structure, and legislative history – to find “the affirmative evidence of intended extraterritorial application that our cases require.”93 The Charming Betsy canon also made a reappearance in Sale. The Court observed that in enacting the Refugee Act, Congress had “disclose[d] a general intent to conform our law”94 to the United Nations Convention on the Status of Refugees.95 It cited Charming Betsy’s mandate that courts avoid statutory constructions that would violate the law of nations.96 It then considered the Convention’s non-refoulement requirement – that refugees not be returned to countries where they would face political persecution. It examined the text and negotiating history of the UN Convention, ultimately concluding that both were “completely silent with respect to [the Convention’s] possible application to actions taken by a country outside its own borders.”97 Thus, in the Court’s view, both the Charming Betsy canon and the presumption against extraterritoriality supported the notion that Congress did not intend the statute to apply outside the United States. While both canons played a role in the Court’s analysis of the extraterritoriality question, it did not elaborate on the precise relationship between the two. Justice Harry Blackmun wrote a hard-hitting dissent in Sale, criticizing both the majority’s interpretive approach as well as its analysis of the international legal sources 89 90 91 92

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509 U.S. 155 (1993). This was the same statute whose extraterritorial application was at issue in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), discussed infra, pp. 394–96. Haitian Centers Council, Inc. v. McNary, 969 F.2d 1350, 1358 (2d Cir. 1992) (quoting EEOC v. Arabian American Oil Company, 499 U.S. 244, 248 (1991)). Id. at 174. Oddly, the Court cited Smith v. United States for support, when in fact Smith had emphasized that “the presumption is rooted in a number of considerations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns in mind.” Smith v. United States, 507 U.S. 197, 204 n.5. In his dissent, Justice Blackmun pointed out the irony of relying on Smith in this context. He noted, “In this case we deal with a statute that regulates a distinctively international subject matter: immigration, nationalities, and refugees. Whatever force the presumption may have with regard to a primarily domestic statute evaporates in this context.” 509 U.S. at 206 (Blackmun, J., dissenting). Id. Id. at 178. Id. (citing its previous decision in Cardoza-Fonseca). It further explained, “[I]t might be argued that the extraterritorial obligations imposed by [the Convention] were so clear that Congress, in acceding to the Protocol, and then in amending the statute to harmonize the two, meant to give the latter a correspondingly extraterritorial effect.” Id. See id. Id.


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in question. He argued convincingly that the majority had ignored well-established rules of international law dictating that a treaty be construed according to its “ordinary meaning.”98 He also questioned the majority’s reliance on the negotiating history of the Convention. He pointed out that the Court’s own precedents (in keeping with international law) required “extraordinarily strong evidence” from the negotiating history to overcome the treaty’s plain language.99 In his view, the majority’s proffered evidence in support of the view that the Convention did not apply extraterritorially – the isolated statement of a single Dutch delegate – did not meet the “extraordinarily strong evidence” standard.100 As the post–World War II period came to a close, one of the era’s seminal cases highlighted the considerable disagreement among the Justices with respect to the role of international law in determining the extraterritorial reach of federal statutes. In Hartford Fire Insurance Co. v. California,101 the Court once more considered the extraterritorial scope of the Sherman Act. At issue was whether the act applied to London reinsurers whose overseas conduct was alleged to have produced negative effects on the U.S. insurance market. In considering the extraterritorial reach of the Sherman Act, previous courts had offered a variety of approaches.102 In American Banana Co. v. United Fruit Co.,103 Justice Oliver Wendell Holmes, Jr. applied a territorial approach to hold that the Sherman Act did not reach beyond U.S. borders.104 In United States v. Aluminum Co. of America (“Alcoa”), Judge Learned Hand of the Second Circuit had adopted an “effects” approach that applied the Sherman Act to foreign companies whose overseas acts caused “effects” within the United States (and were intended to do so).105 In Timberlane Lumber Co. v. Bank of America, Judge Choy of the Ninth Circuit had offered a “balancing approach.” That approach weighed several factors in determining “whether the interests of, and links to, the United States . . . are sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraterritorial authority.”106 Timberlane’s approach was later incorporated into Section 403 of the Restatement (Third) of Foreign Relations Law.107 In Hartford Fire, all of the Justices rejected the territorial approach of American Banana.108 They sharply disagreed, however, with respect to the two remaining 98 99

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Id. at 191 (Blackmun, J., dissenting) (quoting Article 31.1 of the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, T.S. No. 58 (1980), 8 I.L.M. 679 (1969)). See id. at 194 (Blackmun, J., dissenting) (citing Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982)). He also cited Article 32 of the Vienna Convention on the Law of Treaties for the proposition that “[r]eliance on a treaty’s negotiating history (travaux preparatoires) is a disfavored alternative of last resort, appropriate only where the terms of the document are obscure or lead to ‘manifestly absurd or unreasonable’ results.” Id. (quoting Vienna Convention on the Law of Treaties art. 32, 1155 U.N.T.S. at 340, 8 I.L.M. at 692). See id. (Blackmun, J., dissenting). 509 U.S. 764 (1993). On the development of the territorial and effects approaches, see Chapter 8, pp. 259–69. 213 U.S. 347 (1909). See id. at 357. See 148 F.2d 416, 444 (2d Cir. 1945). 549 F.2d 597, 613 (9th Cir. 1976). See Restatement (Third) of Foreign Relations Law § 403 (1987). See Hartford Fire, 509 U.S. at 795–96; id. at 814 (Scalia, J., dissenting). Professor William Dodge points out that this rejection of the territorial approach “is somewhat remarkable in light of the Court’s adoption of a territorial approach to Title VII two terms earlier in Aramco, which the Court made no real effort to distinguish.” William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101, 103 n.5 (1998).

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approaches. The majority, led by Justice David Souter, adopted Alcoa’s effects approach, holding that “the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.”109 In the majority’s view, because the London reinsurers were alleged to have engaged in overseas conduct that had a “substantial effect” on the U.S. insurance market, the district court “undoubtedly had jurisdiction of the Sherman Act claims.”110 Having determined that the defendants’ acts were subject to Sherman Act jurisdiction, the majority proceeded to address the question whether the district court should have declined to exercise its subject matter jurisdiction based on principles of international comity.111 It suggested that Congress had left open this possibility in the appropriate case,112 but it held that the Court need not decide the question here. It reasoned that there was no “true conflict” between U.S. and British law that would render it impossible for the London reinsurers to comply with both. As a result, “international comity would not counsel against exercising jurisdiction in the circumstances alleged here.”113 The majority did not explicitly mention either the presumption against extraterritoriality or the Charming Betsy canon in its analysis. Justice Antonin Scalia, joined by three other Justices in dissent, rejected the majority’s adoption of an effects approach, instead arguing for the balancing approach of Timberlane and the Restatement (Third). In his view, the question was simply one of legislative intent to apply the statute to overseas conduct of the kind alleged here. In discerning legislative intent, Justice Scalia envisioned a two-step process in which the Charming Betsy canon played a subsidiary role. First, courts should examine whether or not the presumption against extraterritoriality “has been overcome or is otherwise inapplicable.”114 Only if the statute in question had passed this first hurdle did Charming Betsy and considerations of international law become relevant. Reluctantly acknowledging the Court’s precedent holding that the Sherman Act applies extraterritorially, Justice Scalia proceeded to apply the Charming Betsy canon and to examine what he termed “international choice-of-law principles.”115 Drawing 109 110 111

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Hartford Fire, 509 U.S. at 796. Id. at 795. In contrast to Justice Scalia’s balancing approach, under the majority’s effects approach, “concerns of comity come into play, if at all, only after a court has determined that the acts complained of are subject to Sherman Act jurisdiction.” Id. at 798 n.24 (citing United States v. Aluminum Co. of America, 148 F.2d 416, 444 (2d Cir. 1945)). See id. at 798 (citing H.R. Rep. No. 97-686 at 13 (1982)). The House Report itself had cited Timberlane and noted, “If a court determines that the requirements for subject matter jurisdiction are met, [the statute] would have no effect on the court[’s] ability to employ notions of comity . . . or otherwise to take account of the international character of the transaction.” H.R. Rep. No. 97-686 at 13 (1982). Hartford Fire, 509 U.S. at 798–99. Id. at 814 (Scalia, J., dissenting). See id. at 815. Justice Scalia surveyed the Court’s case law applying Charming Betsy in both the maritime and non-maritime contexts and concluded, “In sum, the practice of using international law to limit the extraterritorial reach of statutes is firmly established in our jurisprudence.” Id. at 817–18 (discussing Romero v. Int’l Terminal Operating Co., 358 U.S. 354 (1959); Lauritzen v. Larsen, 345 U.S. 571 (1953); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963); Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993); Weinberger v. Rossi, 456 U.S. 25 (1982)). He explained that Charming Betsy is “relevant to determining the substantive reach of the statute because ‘the law of nations,’ or customary international law, includes limitations on a nation’s exercise of its jurisdiction to prescribe.” Id. (citing Restatement (Third) §§ 401–16). He continued, “Though it clearly has constitutional authority to do so, Congress is generally presumed not to have exceeded those customary international-law limits on jurisdiction to prescribe.” Id.


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on customary international law limitations on prescriptive jurisdiction, he articulated a principle of “what might be termed ‘prescriptive comity’: the respect sovereign nations afford each other by limiting the reach of their laws.”116 He cited the Restatement (Third) for the proposition that a nation should refrain from exercising its jurisdiction to prescribe law when that exercise would be unreasonable.117 Applying the multifactor balancing test of the Restatement to the facts at hand, he argued that assertion of legislative jurisdiction by the United States would be unreasonable. Thus, under Charming Betsy, it was “inappropriate to assume, in the absence of statutory indication to the contrary, that Congress had made such an assertion.”118 If Justice Scalia had prevailed in Hartford Fire, his approach would have brought the Court’s post–World War II case law on extraterritoriality full circle. In its 1953 decision in Lauritzen, the Court utilized Charming Betsy and customary international law principles to develop a multifactor choice of law test to govern extraterritorial application of a maritime statute. Forty years later, Justice Scalia relied on Charming Betsy and customary international law in arguing that the Court should adopt a similar multifactor choice of law test for the non-maritime context. The crucial difference, however, was the insertion of the presumption against extraterritoriality into the mix. Lauritzen empowered courts by reading legislative silence as an implicit conferral of authority on the courts to make the extraterritoriality determination on a case-by-case basis. Justice Scalia’s balancing approach in Hartford Fire would have done the same – but only after a presumption against extraterritoriality (and perhaps application of Aramco’s clear statement rule) had been overcome. Because Justice Souter won the day in Hartford Fire, the Court’s post–World War II case law on extraterritoriality instead came full circle by affirming the “effects” approach of Alcoa. The majority’s decision left many unresolved questions, however. It failed to mention either the presumption against extraterritoriality or the Charming Betsy canon (a surprising omission, given Justice Scalia’s heavy reliance on both doctrines in his dissenting opinion). Nor did it mention the Court’s ruling just two years earlier in Aramco, articulating a clear statement requirement for the extraterritorial application of federal statutes. In the post–World War II era, the presumption against extraterritoriality had become unmoored from the Charming Betsy canon and had taken on a life of its own. In Hartford Fire, the Court missed an important opportunity to clarify the precise relationship between the two doctrines and to resolve the question of the continued vitality of the clear statement rule in its extraterritoriality case law.

II. The Charming Betsy Presumption Outside the extraterritoriality context, the Charming Betsy presumption continued to thrive early in the period in a few areas (such as immigration law). The Court also reaffirmed the importance of the canon in an important treaty case.119 A key ruling late in 116

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Id. at 817 (Scalia, J., dissenting). He asserted, “Comity in this sense includes the choice-of-law principles that, ‘in the absence of contrary congressional direction,’ are assumed to be incorporated into our substantive laws having extraterritorial reach.” Id. at 818. See id. at 818 (citing Restatement (Third) § 403(1)). Id. at 819. See Weinberger v. Rossi, 456 U.S. 25 (1982); see also Trans World Airlines Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984).

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the period, however, arguably called into question the Court’s commitment to the canon in resolving treaty conflicts.120 The period also witnessed an increase in scholarly interest in the Charming Betsy canon, as scholars debated its philosophical justifications.121 The Supreme Court’s case law throughout the period mirrored the scholarly debate, with the Court relying on differing rationales for Charming Betsy: as a tool to discern legislative intent, as an expression of the United States’ respect for international comity, as an effort to interpret U.S. law consistently with substantive international law standards, and as an effort to give effect to separation of powers imperatives.

A. Immigration Law While its most robust use of the Charming Betsy canon was in the maritime context, the Court made use of the canon in other contexts as well. In INS v. Cardoza-Fonseca,122 the Court utilized international law to interpret the Refugee Act of 1980.123 Under the statute, eligibility for asylum depended, inter alia, on a finding that the asylum applicant had a “well-founded fear of persecution.”124 At issue in Cardoza-Fonseca was the burden of proof required to establish a well-founded fear. The INS had adopted a clear probability standard, holding that asylum applicants must show that persecution was “more likely than not.”125 The Court conceded that the INS’s interpretations of the Refugee Act were ordinarily entitled to Chevron deference,126 but it nevertheless rejected the clear probability standard, holding that the “well-founded fear” criterion required a more generous interpretation.127 Although the Court did not expressly mention Charming Betsy, the canon clearly came into play in the Court’s interpretation of the Refugee Act.128 The Court noted that the United States was a party to the 1968 United Nations Protocol Relating to the Status of Refugees. It then described what it called “abundant evidence” of congressional intent to conform U.S. asylum law to the Protocol’s requirements.129 It noted, for example, that the Refugee Act itself had adopted a definition of “refugee” that was virtually identical to that in the 1951 UN Convention on the Status of Refugees (which had been incorporated by reference into the Protocol). It also discussed references in the legislative history of the Refugee Act that clearly indicated a congressional intent to interpret the statutory definition “in conformance with” the Protocol itself.130 Given the clear evidence of congressional intent to conform the Refugee Act to the Protocol, the Court deemed it appropriate to consider other international law sources that had interpreted the Protocol’s “well-founded fear” criterion. In particular, it cited the 120 121 122 123 124 125 126 127 128 129 130

See Breard v. Greene, 523 U.S. 371 (1998). See, e.g., Bradley, supra note 1; Turley, supra note 1; Steinhardt, supra note 1. 480 U.S. 421 (1987). See id. at 436–41. 8 U.S.C. § 1101(a)(42) (1988). See id. at 430. See id. at 448; Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). See id. at 433. See Steinhardt, supra note 1, at 1156. See Cardoza-Fonseca, 480 U.S. at 433. See id. at 437. For example, the Conference Committee Report had stated that the statutory definition of “refugee” was accepted “with the understanding that it is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.” S. Rep. No. 96–590 at 20 (1980).


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views of the UN High Commissioner for Refugees (UNHCR), which had adopted a far more generous interpretation of “well-founded fear” than the clear probability standard proffered by the INS.131 While the Court acknowledged that the UNHCR’s views did not have the force of law and could not bind the INS in interpreting the statute,132 it emphasized that they nevertheless “provide significant guidance in construing the Protocol, to which Congress sought to conform.”133 In light of this evidence, the Court rejected the INS’s interpretation of the statute. Cardoza-Fonseca is noteworthy for at least two reasons. First, with the rise of the administrative state, the relationship between Charming Betsy and judicial deference to administrative agencies had become an increasingly significant issue in the post– World War II period. In Cardoza-Fonseca, the Court confirmed the continuing relevance of the Charming Betsy canon in reviewing agency interpretations of federal statutes. While the Court did not delve into the precise role that Charming Betsy might play in reviewing agency interpretations, it made clear that the requirement to extend Chevron deference to those interpretations is not necessarily a bar to application of the canon.134 Second, Cardoza-Fonseca articulated a view of the Charming Betsy canon that is consistent with the Court’s approach in several late-nineteenth-century cases.135 The Court did not ground Charming Betsy in international comity concerns or an assumed congressional intent to avoid international jurisdictional conflicts (as was often the case, for example, with the Court’s maritime case law). Rather, it seemed to ground the doctrine in a presumption that Congress intended to conform its legislation to the substantive requirements of international law. Moreover, it discerned those substantive requirements not merely by considering treaties to which the United States is a party, but by resort to other international sources that may shed light on U.S. treaty obligations, and thus on proper interpretation of the statute in question. On this reading, Cardoza-Fonseca lends support to two competing scholarly conceptions of the Charming Betsy canon, which Professor Curtis Bradley has described as the “legislative intent” and “internationalist” conceptions.136 The Court certainly utilized the canon as a means to implement what it viewed as clear legislative intent to conform the statute to U.S. treaty obligations. But it went a step further: it relied on the views of an international body (as well as the views of international law scholars) to discern the substantive content of U.S. obligations under international law. Thus its approach is consistent with the internationalist conception in which the canon ensures that the United States “complies with and gives effect to international law.”137 131

132 133 134 135 136 137

See Cardoza-Fonseca, 480 U.S. at 439 (citing UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, stating that “[i]n general, the applicant’s fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him”). The Court also cited the travaux preparatoires of the 1951 Convention see id. at 437–38, as well as the work of international law scholars. See id. at 440 n.24. See id. at 439 n.22. Id. At a minimum, the Court’s decision clearly establishes the applicability of the canon in cases where, as here, the Court rejects an agency construction as contrary to clear congressional intent. See Chapter 4, pp. 130–33; see also Steinhardt, supra note 1, at 1154–57 (describing Cardoza-Fonseca as example of “nonjurisdictional interpretive uses of international law”). See Bradley, supra note 1, at 495–504. Id. at 485; see also Steinhardt, supra note 1, at 1153 (noting that Cardoza-Fonseca “suggest[s] a broad endorsement of international principle in the interpretation of statutes”).

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A decade after Cardoza-Fonseca, a second case interpreting the Refugee Act called into question both the Court’s commitment to Charming Betsy in Chevron deference cases and the possible emergence of an internationalist conception of the canon. At issue in INS v. Aguirre-Aguirre138 was a statutory provision denying withholding of deportation to any alien who had committed “a serious nonpolitical crime” before arriving in the United States.139 The INS had interpreted the statutory language to encompass offenses in which the “criminal nature” of the crime outweighed its “political nature.”140 The Court of Appeals rejected this construction, holding that the INS was obligated to supplement this test by balancing an alien’s criminal acts against the risk of persecution she would face if returned to her home country.141 In reaching this conclusion, the Court of Appeals relied heavily on international law.142 In light of the Supreme Court’s decision just a decade earlier in Cardoza-Fonseca, the resort to international law is hardly surprising. The same statute was at issue in both cases, and the Supreme Court had already squarely held that “one of Congress’ primary purposes” in passing the Refugee Act was to bring U.S. asylum law into conformity with U.S. treaty obligations under the UN Protocol on Refugees.143 Moreover, just as in Cardoza-Fonseca, the “serious non-political crime” provision in the statute was virtually identical to a provision in the 1951 Convention to which the UN Protocol made reference.144 Finally, and most importantly, in choosing international law sources to interpret the Protocol – and thus the statute – the Court of Appeals was following the practice of the Cardoza-Fonseca Court to the letter. It relied on the views of the UNHCR as expressed in its Handbook on Refugees: the very same source that the Supreme Court had consulted in interpreting U.S. treaty obligations in Cardoza-Fonseca.145 The Supreme Court, however, rejected the Court of Appeals’ approach. It first took the lower court to task for failing to extend the necessary deference to the INS’s statutory construction required by Chevron. It emphasized the special judicial deference due to the executive branch in the immigration context, “where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’”146 It further noted that executive branch decisions to declare certain crimes to be “political in nature” could present sensitive questions regarding our relations with foreign nations.147 It concluded, “The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.”148 In contrast to Cardoza-Fonseca, the Aguirre-Aguirre Court barely acknowledged the potential relevance of international law in reviewing the agency’s interpretation. It recognized that the two cases stood on similar footing with regard to international law. 138 139 140 141 142 143 144 145

146 147 148

526 U.S. 415 (1999). 8 U.S.C. § 1253(h)(2)(C) (1980). See Aguirre-Aguirre, 526 U.S. at 422 (citing the Board of Immigration Appeals’ decision in Matter of McMullen, 19 I. & N. Dec. 90, 97–98 (B.I.A. 1984)). See id. at 423. See id. at 426–29 (discussing Court of Appeals’ reliance on 1979 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status). See id. at 427 (quoting Cardoza-Fonseca, 480 U.S. at 436–37). See id. at 427 (quoting treaty). The UN Handbook stated that in applying the serious nonpolitical crime provision of the Convention, “it is . . . necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared.” See id. at 427 (citing paragraph 156 of UN Handbook). Id. at 425 (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). See id. Id.


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For example, it noted the clear congressional intent to conform the Refugee Act to the UN Protocol and conceded that the UNHCR Handbook “provides some guidance” in construing the provisions of the act.149 Here, however, the Court emphasized the limitations of the Handbook as an interpretive source: “The U.N. Handbook may be a useful interpretive aid, but it is not binding on the Attorney General, the [INS], or United States courts.”150 The Court did not indicate disagreement with the UNHCR’s interpretation of the “serious nonpolitical crimes” provision, nor did it attempt to distinguish AguirreAguirre from its earlier precedent or to explain its different approach to international law in this case. Having determined that the INS’s construction was “a fair and permissible reading of the statute,”151 the Court refused to consider the relevance of international law readings to the contrary. Implicit in Aguirre-Aguirre was a suggestion that the Charming Betsy canon may have a more limited role to play in cases involving Chevron deference. In Cardoza-Fonseca, the Court relied on nonbinding international sources as evidence that the INS’s statutory construction violated both the plain language of the statute and congressional intent. In Aguirre-Aguirre, however, the Court seemed to imply that administrative agencies need not consider such sources in interpreting statutes. So long as the agency’s interpretation was a fair reading of the statute, it would be upheld even if the agency did not take into account international legal standards in developing its interpretation. Indeed, the Court suggested that this was true even in cases where Congress had clearly indicated a desire that the statute be interpreted consistently with the United States’ international legal obligations. Aguirre-Aguirre also suggests a different view of the theoretical underpinnings of the Charming Betsy canon. The Cardoza-Fonseca Court utilized the canon to ensure that U.S. statutory law was “in conformance with” substantive international law standards (at least where there was evidence of legislative intent to do so). Aguirre-Aguirre instead highlighted international comity concerns and a desire to avoid conflicts with other nations. It also stressed the importance of separation of powers in reconciling domestic and international law. By emphasizing the political nature of executive branch decision making and the special judicial deference required in the immigration context generally, the Court allowed separation of powers concerns to play a significant role in limiting the application of Charming Betsy.152

B. Treaty Conflicts During the post–World War II period, the Court also grappled with the application of the Charming Betsy canon to conflicts between treaties and federal statutes. An important 149 150 151 152

Id. at 427. Id. Id. at 428. Of course, an internationalist conception of the canon also takes into account separation of powers concerns, but with a very different result. Under the internationalist view, the executive branch lacks the constitutional power (or at least has very limited constitutional power) to violate the nation’s international legal obligations without express authorization by Congress. Thus a decision to violate international law must be made expressly by Congress. The Aguirre-Aguirre Court, by contrast, seemed to assume that the Executive has broad power to contravene international law. As a result, decision making by the Executive is subject only to very deferential judicial review. Thus the Court’s shifting approach to Charming Betsy from Cardozo-Fonseca to Aguirre-Aguirre seems to be related (at least in part) to the post–World War II rise of executive power.

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milestone was Weinberger v. Rossi,153 in which the Court extended Charming Betsy to executive agreements. At issue in Weinberger was a potential conflict between an executive agreement with the government of the Philippines and a subsequently enacted employment discrimination statute. The executive agreement gave Filipinos preferential treatment in hiring on a U.S. military base in the Philippines, while the statute prohibited employment discrimination by the U.S. military against U.S. citizens, unless permitted by “treaty.” At issue in the case was whether the statutory term “treaty” included executive agreements entered into by the President without the advice and consent of the Senate.154 After noting that the statute’s legislative history was silent on the issue, the Supreme Court explored the plain meaning of the term “treaty.” It acknowledged that, under the U.S. Constitution, a treaty required the advice and consent of the Senate. But it also noted that “[u]nder principles of international law, the word ordinarily refers to an international agreement concluded between sovereigns, regardless of the manner in which the agreement is brought into force.”155 In interpreting the statutory term, the Court in effect adopted the international law definition, construing “treaty” to include both executive agreements and Article II treaties.156 In reaching this conclusion, the Court explicitly relied on Charming Betsy.157 It noted that at the time the statute was enacted, there were thirteen executive agreements in force providing for preferential hiring of foreign nationals on U.S. overseas military bases. Congress could override those executive agreements by statute if it chose to do so, but this would require “some affirmative expression of congressional intent to abrogate the United States’ international obligations.”158 The Court viewed application of the Charming Betsy canon as appropriate for two reasons.159 First, Charming Betsy enabled the Court to avoid a construction of the statute that would have negative implications for U.S. foreign policy. The Court asserted that where a statute “touch[es] upon the U.S. foreign policy,”160 courts should be careful to avoid constructions that would have adverse “foreign policy implications.”161 Because abrogation of numerous executive agreements with foreign nations would unquestionably have such implications, any statutory construction leading to that result was to be avoided if possible.162 Thus in Weinberger, the Charming Betsy canon gave effect to both international comity and separation of powers concerns. Second, in the Court’s view, Charming Betsy stood for the proposition that courts should avoid statutory constructions that would be contrary to a “well-established rule of international law.”163 The Court did not elaborate on this point, and it is not clear what “rule of international law” the Court had in mind. One possibility is that the Court 153 154 155 156 157 158 159

160 161 162 163

456 U.S. 25 (1982). See id. at 25. Id. at 29. See id. at 31. See id. at 32 (citing Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804)). Id. The Court adopted the rationales for the Charming Betsy canon expressed in its earlier decision in McCulloch v. Sociedad Nacional de Marinaros de Honduras, 372 U.S. 10, 20–21 (1963), discussed supra pp. 384–86. Weinberger, 456 U.S. at 31. Id. See id. at 32. Id. at 32 (quoting McCulloch v. Sociedad Nacional de Marinaros de Honduras, 372 U.S. 10, 21 (1963)).


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was simply acknowledging the ancient customary international law norm of pacta sunt servanda – that is, that nation-states are bound by their promises to other states. As Professor Ralph Steinhardt has observed, in this sense Weinberger can be read as implementing “a flexible version of . . . pacta sunt servanda, in the form of a clear statement requirement: international agreements will be honored in the construction of statutes, unless Congress provides a clear statement of its repudiatory intent.”164 The Court confirmed this approach two years later in Trans World Airlines, Inc. v. Franklin Mint Corp.165 The Court held that congressional repeal of legislation did not implicitly override earlier treaty commitments under the Warsaw Convention. While the Court did not explicitly mention Charming Betsy, it relied heavily on its analysis in Weinberger, citing “the firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action.”166 It further noted that for a later statute to abrogate or modify a treaty, “such purpose on the part of Congress [must be] clearly expressed.”167 Finally, it emphasized that “[l]egislative silence is not sufficient to abrogate a treaty.”168 The Court’s approach in Franklin Mint was consistent with its 1884 decision in Chew Heong v. United States,169 in which the Court expressly linked the canon against finding implicit repeal of a treaty to what would later come to be known as the Charming Betsy canon. A decade and a half later, the Court’s decision in Breard v. Greene170 called into question its commitment to the Charming Betsy canon as a device to resolve conflicts between treaties and federal statutes. At issue in Breard was an apparent conflict between the so-called consular notification provision of the Vienna Convention on Consular Relations and the subsequently enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The Vienna Convention requires that foreign nationals, on arrest or detention, be informed of their right to contact their country’s consulate.171 The AEDPA, however, provides that federal habeas petitioners alleging that they are held in violation of “treaties of the United States” are not entitled to a hearing if they failed to raise the claim in state court proceedings.172 Breard had petitioned for federal habeas corpus, alleging that he had been denied his Vienna Convention right, but he had not raised this claim before the state courts.173 Thus an apparent conflict between the treaty and the later-enacted statute was squarely before the Court. A first reading of Breard suggests that the Court’s opinion was inconsistent with its earlier precedent utilizing Charming Betsy to resolve treaty conflicts. On this reading, the Court did not attempt to utilize the canon to reconcile the statutory language with the treaty’s requirements. For example, it failed to mention the clear statement rule of Weinberger and Franklin Mint, nor did it adopt those cases’ “firm and obviously

164 165 166 167 168 169 170 171 172 173

Steinhardt, supra note 1, at 1154. 466 U.S. 243, 252 (1984). Id. Id. Id. (citing Cook v. United States, 288 U.S. 102, 120 (1933); Weinberger v. Rossi, 456 U.S. 25, 32 (1982)). 112 U.S. 536 (1884). For further discussion of Chew Heong, see Chapter 2, pp. 68–70, 74–75; Chapter 4, pp. 134–35. 523 U.S. 371 (1998). See Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. See 523 U.S. at 376. See id.

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sound canon of construction against finding implicit repeal of a treaty”174 in subsequent legislation. Instead, the Breard Court relied on another canon – the later-in-time rule – to resolve the conflict. It noted that statutes are “on a full parity with a treaty, and . . . when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.”175 Thus, in resolving the apparent conflict between the treaty and the statute, the later-in-time rule trumped Charming Betsy. As a result, the AEDPA’s statutory requirements overrode any treaty claim that Breard might have had. On closer examination, however, the Court’s approach in Breard v. Greene could be read consistently with its earlier precedent on treaty conflicts. On this reading, the Court employed a sub silentio use of the Charming Betsy canon by suggesting that the Vienna Convention itself could be interpreted consistently with AEDPA’s requirements. The Court noted, for example, that the Vienna Convention provided that treaty obligations under the Convention “shall be exercised in conformity with the laws and regulations of the receiving State.”176 Thus, the Convention itself arguably recognized that the U.S. treaty obligation to provide consular notification is itself subject to the requirements of domestic laws like the AEDPA. By construing the U.S. treaty obligation in this way, the Court avoided a conflict between the statute and the treaty, acting consistently with Charming Betsy’s mandate.177 Which is the better reading of Breard? The answer to this question depends to a large extent on one’s conception of the Charming Betsy canon itself – that is, just what is required to comply with Charming Betsy’s mandate “that an act of congress ought never to be construed to violate the law of nations if any other possible construction remains”?178 The latter reading – that the Court employed a sub silentio application of Charming Betsy – is consistent with a conception of the canon that focuses more narrowly on questions of legislative intent and that narrowly defines the United States’ international law obligations. On this reading, the Court found that the operative international law source – the treaty – could be read consistently with the statutory language. The United States was not in violation of its international law obligations (as defined by the Court), and thus the Court need not apply Charming Betsy to construe the statute. Under a more robust conception of the canon, however, Charming Betsy imposes a positive obligation to ensure that the United States “complies with and gives effect to”179 its substantive international law obligations. Moreover, it defines those obligations more broadly to encompass not only the treaty but also other international legal sources that might shed light on the proper interpretation of the treaty – and thus on U.S. obligations under the treaty. Thus, for example, an internationalist conception of the Charming Betsy canon suggests that the Court erred in reading the Vienna Convention to permit application of the AEDPA to treaty claims. After all, the International Court of Justice (ICJ), which had final authority under the treaty regime to resolve questions of treaty interpretation, had requested that the United States stay Breard’s execution until that court could consider the issue.180 174 175 176 177 178 179 180

Id. Id. Breard, 523 U.S. at 375 (quoting Vienna Convention article 36(2)). See Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675, 744 (2003). Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). Bradley, supra note 1, at 485. See Breard, 523 U.S. at 374.


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An internationalist take on Charming Betsy might have suggested that the Supreme Court issue a stay of execution until the ICJ issued its ruling. By so doing, the Court could have informed its analysis with a more robust understanding of the substantive international law obligations at issue in the case – one that encompassed both the treaty text and the views of the ICJ interpreting that text. In other words, on the internationalist view, the issue for the Court was not simply avoidance of a conflict with the treaty text itself, but with the substantive international law obligations that the treaty represented. The Court could best address this conflict by staying the proceedings and awaiting the ICJ’s ruling. As cases like Breard demonstrate, one of the broader issues at stake for the Charming Betsy canon throughout the post–World War II period was the theoretical justification for the canon. At times, the Court seemed to view the canon as a simple tool to discern legislative intent in the face of congressional silence or ambiguity. In other cases, the Court stressed the canon’s roots in international comity or international jurisdictional concerns. In at least one case, the Court seemed attracted to an internationalist conception that viewed the canon as an effort to interpret U.S. law consistently with substantive international law standards. And still other cases viewed Charming Betsy as a canon intended to give effect to separation of powers imperatives.181

III. Foreign Sovereign Immunity The post–World War II period brought dramatic changes to the treatment of foreign sovereigns before the Supreme Court.182 The Foreign Sovereign Immunities Act codified the restrictive theory of sovereign immunity and attempted to depoliticize immunity determinations by removing them from the purview of the Executive and placing them squarely within the jurisdiction of the courts. The Supreme Court examined the constitutionality of the FSIA with regard to suits by foreign plaintiffs and also explored the scope and proper interpretation of the “commercial activities” exception to the FSIA. Meanwhile, lower courts struggled late in the period to define the scope of individual immunity under the FSIA. The first significant event of the period came in 1952, when State Department Acting Legal Adviser Jack Tate announced the U.S. government’s official adoption of the restrictive theory of foreign sovereign immunity.183 Under the new regime, foreign sovereigns were entitled to immunity from suits related to their official governmental

181

182 183

In 1979, the Supreme Court began to cite Charming Betsy as support for the domestic constitutional avoidance canon, relying explicitly on Charming Betsy’s supposed grounding in separation of powers concerns. See, e.g., NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (“In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall’s admonition in Murray v. The Charming Betsy, by holding that an Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available.”) (emphases added). Later cases followed this trend, and the Charming Betsy canon continues to be miscited as an example of the constitutional avoidance canon, rather than as a mandate that courts attempt to reconcile federal statutes with U.S. international law obligations. For discussion of foreign sovereign immunity in the 1901–45 period, see Chapter 7, pp. 234, 238. See Letter from Jack Tate, Acting Legal Adviser to the Secretary of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), in 26 Dept. St. Bull. 984, 984 (1952); see also Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711 (1976) (app. to opinion of White, J.) (appending text of Tate Letter).

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acts, but not from suits related to their “private” commercial acts.184 In a letter to the Department of Justice (known as the “Tate Letter”), Tate explained the State Department’s shift in position on several grounds. He noted that in the modern age, foreign sovereigns were often engaged in private commerce, and those who did business with them were entitled to a forum to resolve any disputes that might arise.185 He also surveyed the practices of numerous other countries and concluded that the U.S. shift in position was consistent with a broad worldwide trend toward adoption of the restrictive theory.186 Cold War concerns also came into play in Tate’s analysis. He noted that there was “little support” worldwide for the absolute theory of immunity, “except on the part of the Soviet Union and its satellites.”187 In his view, the Soviet Union’s continuing commitment to the absolute theory served as an additional reason why the United States should abandon the theory. He commented, “The reasons which obviously motivate state trading countries in adhering to the theory with perhaps increasing rigidity are most persuasive that the United States should change its policy.”188 Tate also argued that because the United States no longer asserted a sovereign immunity defense in foreign lawsuits for contract or tort claims, it would be unfair for foreign sovereigns to be entitled to such a defense in U.S. courts.189 Tate acknowledged that U.S. courts would not be bound by the U.S. government’s shift in policy. But he asserted that “the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so.”190 He alluded to prior Supreme Court decisions deferring to the executive branch’s sovereign immunity suggestions, commenting that “at least some Justices . . . feel that in this matter courts should follow the branch of the Government charged with responsibility for the conduct of foreign relations.”191 Under the Tate Letter regime, a foreign sovereign defendant effectively had two available options. First, it could request that the State Department intervene on its behalf by making an official suggestion of immunity to the court. In such instances, the court generally treated such suggestions as binding and dismissed the case on sovereign immunity grounds. Alternatively, the foreign sovereign could seek a determination directly from the court. The ad hoc nature of the Tate Letter regime led to criticisms that it encouraged inconsistent and inequitable judicial application of the restrictive theory. Moreover, critics complained that State Department intervention in judicial proceedings on foreign sovereign immunity politicized what should be a legal determination for the courts.192

184 185 186

187 188 189 190 191 192

Id. at 985. See id. See id. (noting that the United Kingdom and the Soviet Union and its satellites were the only exceptions, and further noting that “British authorities are aware of [the] deficiencies [of the absolute theory] and ready for a change”). Id. Id. See id. Id. Id. This was something of an understatement, because the Supreme Court during the 1940s had established a practice of deferring almost completely to the Executive. See Chapter 7, p. 238. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 487–88 (1993) (describing sovereign immunity practice during the Tate Letter regime and discussing criticisms of it).


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In 1976, Congress responded to these complaints by enacting the Foreign Sovereign Immunities Act (FSIA).193 The FSIA codified the restrictive theory of sovereign immunity,194 thus providing a single legal standard for both state and federal courts to apply.195 In addition, it provided a single statutory procedure for establishing both personal and subject matter jurisdiction over foreign sovereigns.196 One of the primary goals of the FSIA was to depoliticize sovereign immunity determinations by transferring those determinations from the Executive to the judicial branch. According to the House of Representatives’ Report on the legislation, the act would thus “reduc[e] the foreign policy implications of immunity determinations and assur[e] litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process.”197 Moreover, it asserted that the State Department would benefit from this transfer, noting that it “would be freed from pressures from foreign governments to recognize their immunity from suit and from any adverse consequences resulting from any unwillingness of the Department to support that immunity.”198 The Court’s first occasion to examine the FSIA came in 1983’s Verlinden B.V. v. Central Bank of Nigeria.199 In Verlinden, a Dutch corporation brought suit under the FSIA against an instrumentality of the Nigerian government, alleging anticipatory breach of contract. At issue was whether Congress, in enacting the FSIA, had exceeded the scope of Article III of the U.S. Constitution by authorizing a foreign plaintiff to sue a foreign state in federal court on a nonfederal cause of action. The Court began by reviewing the history of foreign sovereign immunity in the United States, noting that such immunity “is a matter of grace and comity on the part of the United States.”200 Next, it held that both the plain language of the statute and the legislative history indicated Congress’s intent not to limit jurisdiction to actions brought by American citizens. So long as a foreign plaintiff’s cause of action met the substantive standards of the FSIA requiring “substantial contact” with the United States, “it may be brought in federal court regardless of the citizenship of the plaintiff.”201 The Court then turned to the Article III question. It acknowledged that federal diversity jurisdiction (which extends the federal judicial power to controversies between “a State, or the Citizens thereof, and foreign States”202 ) was not broad enough to support jurisdiction over suits by foreign plaintiffs. It held, however, that the “arising under” clause of Article

193 194

195 196 197 198

199 200

201 202

Foreign Sovereign Immunities Act, Pub. L. No. 94-583, 90 Stat. 2891 (1976), codified as amended at 28 U.S.C. §§ 1330, 1391(b), 1441(d), 1602–11 (2000) [hereinafter FSIA]. See House Judiciary Committee, Jurisdiction of United States Courts in Suits Against Foreign States, H.R. Rep. No. 94–1487, 94th Cong., 3d Sess. (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6605 [hereinafter H.R. Report]. See id. § 1604 (providing that this standard controls in “the courts of the United States and of the States”). See H.R. Report, supra note 194, at 6605–06. Id. Id. The House Report also pointed out that the FSIA would bring U.S. practice into conformity with “the practice in virtually every other country – where sovereign immunity decisions are made exclusively by the courts and not by a foreign affairs agency.” Id. at 6605. 461 U.S. 480 (1983). Id. at 486. This characterization was not new. See The Santissima Trinidad, 20 U.S. 283, 353 (1822) (Story, J.) (observing that foreign sovereign immunity “stands upon principles of public comity and convenience”); Chapter 1, pp. 39–40. 461 U.S. at 491. U.S. Const. art. III.

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III did provide a basis for the FSIA’s grant of subject matter jurisdiction to such suits.203 The Court cited its precedent indicating that “arising under” jurisdiction extended to cases or controversies involving the application of substantive federal law.204 It asserted that a suit against a foreign state “necessarily raises questions of substantive federal law at the very outset.”205 The Court explained, “By reason of its authority over foreign commerce and foreign relations, Congress has the undisputed power to decide, as a matter of federal law, whether and under what circumstances foreign nations should be amenable to suit in the United States.”206 In the FSIA, Congress had exercised that power by enacting a comprehensive legislative scheme that “codifies the standards governing foreign sovereign immunity as an aspect of substantive federal law.”207 In the Court’s view, the jurisdictional provisions of the FSIA were simply one part of this broader legislative scheme. In determining jurisdiction, a district court “must apply the detailed federal law standards set forth in the act.”208 For this reason, the Court concluded, actions by foreign plaintiffs under the FSIA fell within the “arising under” clause of Article III and thus did not violate the U.S. Constitution.209 Having established the constitutionality of the FSIA in Verlinden, the Court’s later cases addressed the issue of how to interpret one of the act’s most confusing provisions: the commercial activities exception, which denies sovereign immunity to a foreign sovereign when it engages in commercial activities that have the required nexus to the United States.210 While the act sets forth various other exceptions under which foreign sovereigns are denied immunity,211 the bulk of the litigation in the post–World War II period – and the thorniest interpretive issues for the courts – came in suits falling under the commercial activities exception. In particular, the courts grappled with two questions: first, how to define “commercial activity,” and second, how to define the FSIA’s “direct effect” provision, which denies immunity to foreign sovereigns for commercial acts that occurred outside the United States but created a direct effect within the United States.212 The Supreme Court addressed both questions in 1991’s Republic of Argentina v. Weltover, Inc.213 At issue was whether Argentina’s issuance and rescheduling of certain bonds amounted to acts taken in connection with a commercial activity that had a direct effect in the United States. In a unanimous opinion written by Justice Scalia, the Court first addressed the meaning of “commercial activity” under the FSIA. Noting that the act’s definition of “commercial activity” was not a paragon of clarity, the Court proceeded to define the term in accordance with the restrictive theory’s view of its meaning at the time of the FSIA’s enactment.214 The Court held that Argentina had acted “not as 203 204 205 206 207 208 209 210 211 212 213 214

461 U.S. at 494. See id. at 492 (discussing Osborn v. Bank of the United States, 22 U.S. 738 (1824)). Id. Id. It further pointed out that legal actions against foreign sovereigns raise sensitive foreign relations issues, and thus “the primacy of federal concerns is evident.” Id. Id. at 497. Id. at 494. See id. at 497. See 28 U.S.C. §1605(a)(2) (2008). See 28 U.S.C. §§1605–1607(2008). See 28 U.S.C. §1605(a)(2) (2008). 504 U.S. 607 (1992). See id. at 612–14.


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regulator of a market, but in the manner of a private player within it”215 and thus that its actions were “commercial” within the meaning of the FSIA. In the Court’s view, it was irrelevant whether Argentina was “acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives,”216 because the FSIA required that the commercial character of the foreign sovereign’s act be determined by reference to its “nature” rather than its “purpose.”217 Regardless of the motives behind the sovereign’s acts, the Court held, “the issue is whether [they] are the type of actions by which a private party engages in . . . commerce.”218 Because the Argentine bonds were “garden variety debt instruments” capable of being traded on the international market, Argentina’s acts were “commercial” within the meaning of the FSIA.219 The Court then turned to the second issue: whether Argentina’s rescheduling of its bonds caused a “direct effect” in the United States within the meaning of § 1605(a)(2).220 It refused to read into the provision “any unexpressed requirement of ‘substantiality’ or ‘foreseeability,’”221 instead holding that “an effect is ‘direct’ if it follows ‘as an immediate consequence of the defendant’s . . . activity.’”222 Under this reading, the Court held that Argentina’s activities had a “direct effect” in the United States because the bondholders had designated New York bank accounts as the place of payment on the bonds, thus rendering New York the place of performance for its contractual obligations.223 If the FSIA’s definition of “commercial activity” was not a paragon of clarity, neither was the Supreme Court’s interpretation of its “direct effect” provision in Weltover. In holding that plaintiffs need only show that an effect was “an immediate consequence of the defendant’s activity,” the Court cited with approval the Second Circuit’s test for “direct effect” in the decision below.224 That test, however, required an additional element: it instructed courts to “look to the place where legally significant acts” occurred to determine whether a “direct effect” had occurred in the United States.225 The Second Circuit had held that Argentina’s failure to make payment to its creditors in New York was a “legally significant act” and thus had a direct effect in the United States.226 In its opinion upholding the Second Circuit, the Supreme Court was silent with respect to the Second Circuit’s “legally significant act” requirement. As a result, Weltover produced a circuit split, with several Courts of Appeals taking the position that the Supreme Court had implicitly adopted the “legally significant act” requirement and others arguing that the Court’s silence should be read as rejecting that requirement.227 215 216 217 218 219 220

221 222 223 224 225 226 227

Id. at 614. Id. See id. (quoting 28 U.S.C. § 1603(d)). Id. See id. at 615. Section 1605(a)(2) provides, in relevant part, “A foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case . . . in which the action is based . . . upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” 28 U.S.C. § 1605(a)(2)(2008). Id. at 618. Id. See id. at 618–19. See id. at 618. Weltover, Inc. v. Republic of Argentina, 941 F.2d 145, 152 (2d Cir. 1991). See id. See Joseph F. Morrissey, Simplifying the Foreign Sovereign Immunities Act: If a Sovereign Acts like a Private Party, Treat It like One, 5 Chi. J. Int’l L. 675 (2005).

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During the last two decades of the twentieth century, a few lower courts struggled with another issue related to foreign sovereign immunity: the relationship between immunity of the foreign state under the FSIA, on the one hand, and the immunity of individual foreign officials, on the other. At the time the FSIA was enacted, the Department of State treated these as distinct legal issues.228 For example, unlike the foreign state, individual foreign officials were not subject to the principles of restrictive immunity.229 After the passage of the FSIA in 1976, lower courts began to address its potential application to suits against individual foreign officials. A split quickly emerged, with several courts extending the FSIA’s protections to foreign government officials,230 while others held that it did not apply.231 As the post–World War II period came to a close, only one federal circuit court had definitively addressed the question. In Chuidian v. Philippine National Bank,232 the Ninth Circuit held that a Philippine government official was an “agency or instrumentality” of the state within the meaning of § 1603(d) and thus immune from suit. It did so despite the fact that the United States had filed a Statement of Interest in the case supporting the plaintiff’s position that § 1603(d) did not apply to individuals.233 While the court conceded that there was “some significant support from the legislative history” for the government’s position, it concluded that the act was “ambiguous” with respect to its extension to individual foreign officials.234 It adopted a broad reading of the “agency or instrumentality” provision on the ground that such a reading was consistent with Congress’s intent to enact “a comprehensive codification of immunity and its exceptions.”235 In the court’s view, to allow “unrestricted suits against individual foreign officials acting in their official capacities . . . would amount to a blanket abrogation of foreign sovereign immunity by allowing litigants to accomplish indirectly what the Act barred them from doing directly.”236

IV. Constitutional Interpretation In constitutional interpretation, the post–World War II period was an era of both significant decline and dramatic resurgence for international law. Jurisdictional analysis under the Due Process Clause became decoupled from Pennoyer v. Neff ’s reliance on international law principles of territoriality and was replaced by the minimum contacts/reasonableness standard of International Shoe. In determining the reach of federal 228 229 230

231 232 233

234 235 236

Sovereign Immunity Decisions of the United States, May 1952 to January 1977, 1977 U.S. Dig. Prac. Int’l L. 1017, 1020. See id. at 1076–77 (discussing Greenspan v. Crosbie, 1976 WL 841 (S.D.N.Y.)). See, e.g., Kline v. Kaneko, 685 F. Supp. 386 (S.D.N.Y. 1988); Rios v. Marshall, 530 F.Supp. 351, 371 (S.D.N.Y. 1981). The courts relied on § 1603(b) of the act, which extends sovereign immunity to “agencies or instrumentalities” of the sovereign state. See Republic of Philippines v. Marcos, 665 F. Supp. 793 (N.D. Cal. 1987) (holding that foreign officials are not within the scope of § 1603(b) and instead granting the defendant diplomatic immunity). 912 F.2d 1095 (9th Cir. 1990). The United States asserted an alternative position that foreign government officials were entitled to immunity under “general principles of sovereign immunity” as reflected in the Restatement (Second) of Foreign Relations Law § 66(b). It reasoned that the FSIA had replaced the common law of sovereign immunity with respect to foreign states, but that the common law still governed with respect to individual immunity. See 912 F.2d at 1101, 1102–03 (discussing, and rejecting, government’s position). 912 F.2d at 1101. Id. at 1102. Id.


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power, the “sovereign powers” approach that had characterized earlier periods largely disappeared from the Court’s jurisprudence, except in a few cases. At the same time, the Court increasingly invoked international law in interpreting individual rights under the Eighth Amendment and other provisions in the Bill of Rights. The Court also utilized international human rights law to expand individual rights. Also striking was the interaction between the Court’s approach to federal power and its growing interest in utilizing international law in interpreting individual rights. The Court broke with its sovereign powers approach while at the same time utilizing international human rights law to constrain government power.

A. Jurisdictional Analysis under the Due Process Clause At the beginning of the post–World War II period, the Court immediately turned away from reliance on international law in its treatment of jurisdictional questions. In its seminal opinion in International Shoe Co. v. Washington,237 for example, the Court abandoned the “presence” test for determining whether a court’s exercise of jurisdiction over the parties to a lawsuit complied with the Due Process Clause. In adopting the presence test in its 1878 decision in Pennoyer v. Neff,238 the Court had relied on the international law principle of territorial jurisdiction, holding that a party’s presence within the territorial jurisdiction of a State was a prerequisite to that State’s courts’ exercise of jurisdiction over it. International Shoe abandoned the presence test, instead adopting a reasonableness test in which a nonresident defendant need only have “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”239 While the Court in International Shoe did not explicitly refer to the international law basis of the Pennoyer test, it clearly rejected as outdated the territoriality principle on which Pennoyer was based. Moreover, it implicitly relied on the fact that international law itself had moved beyond the territoriality principle.240 The Court cited its previous decision in Blackmer v. United States,241 which had upheld extraterritorial application of a federal statute to U.S. nationals abroad in part by reliance on the so-called nationality principle, which permits the exercise of legislative jurisdiction over subjects traveling or living abroad.242 The Court’s sub silentio rejection of international law’s territoriality principle in International Shoe became explicit in Shaffer v. Heitner.243 Shaffer extended the minimum contacts test to suits brought under the courts’ in rem jurisdiction. The Shaffer Court explicitly recognized Pennoyer’s grounding in international jurisdictional principles regarding territoriality. It further acknowledged that those principles “became the basic elements of the constitutional doctrine governing state-court jurisdiction.”244 The Court then described the various developments (for example, the advent of the 237 238 239 240 241 242 243 244

326 U.S. 310 (1945). 95 U.S. 714 (1878). 326 U.S. at 316. See id. 284 U.S. 421 (1932). See id. at 436–38. 433 U.S. 186 (1977). Id. at 198–99.

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automobile and the “realities of interstate corporate activities”) that necessitated the gradual erosion – and eventually the abandonment – of the presence test. Thus the inquiry into personal jurisdiction now focused on the “relationship among the defendant, the forum, and the litigation, rather than the mutually exclusive sovereignty of the States on which the rules of Pennoyer rest.”245 The Court concluded that this more nuanced approach should be extended to cases involving in rem jurisdiction as well. To do otherwise, the Court asserted, would be to “perpetuate[] . . . ancient forms that are no longer justified.”246 Later cases confirmed the Court’s rejection of the presence test (and its grounding in international law) in favor of International Shoe’s minimum contacts test.247

B. Sovereign Powers In the post–World War II period, the Court largely abandoned its reliance on the sovereign powers approach to define the reach of the federal government’s power. The one exception was in the immigration and citizenship context, where the Court continued to invoke international law in some cases to support Congress’s power to act as sovereign. In Harisiades v. Shaughnessy,248 the Court relied on the powers inherent in sovereignty to find that deportation of legally resident aliens under the Alien Registration Act was within Congress’s constitutional authority. Petitioners had been ordered deported under the act because of their membership in the Communist Party, despite the fact that their membership had terminated before its enactment. The Court rejected the petitioners’ due process challenge on sovereign powers grounds. It noted: “That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state.”249 Interestingly, the Court relied on the dual status of legal resident aliens as support for its sovereign powers approach. It explained that so long as resident aliens retained their foreign citizenship, “[they] may derive advantages from two sources of law – American and international.”250 The Court noted, for example, that resident aliens were entitled to diplomatic protections under international law unavailable to U.S. citizens, and it observed that petitioners’ home countries could “enter diplomatic remonstrance against these deportations if they were inconsistent with international law, the prevailing custom among nations or their own practices.”251 But the Court emphasized that the continued presence of aliens on U.S. soil was not a right, but “a matter of permission and tolerance.”252 Citing its previous decision in Fong Yue Ting, it stressed that, under international law, “a State can expel even domiciled aliens without so much as giving the 245 246 247 248 249 250 251 252

Id. at 204. Id. at 211. See, e.g., Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). 342 U.S. 580 (1952). Id. at 587–88. Id. at 585. Id. Id.


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reasons” for the expulsion. It concluded, “Such is the traditional power of the Nation over the alien and we leave the law on the subject as we find it.”253 The Harisiades Court’s articulation of sovereign powers envisioned little role for the courts in examining the reach of federal power. In keeping with its prior decisions in Fong Yue Ting and Curtiss-Wright, the Court emphasized limitations on the judicial role. In the Court’s view, U.S. policy toward aliens was “vitally and intricately interwoven with . . . the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”254 To interpret the Constitution to limit the government’s power of deportation, in the Court’s view, would be “rash and irresponsible” and would “deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities.”255 Relying on its decision in Curtiss-Wright, the Court concluded, “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”256 In Perez v. Brownell,257 the Court reaffirmed the sovereign powers approach in upholding Congress’s power to enact the Nationality Act of 1940, which deprived individuals who had voted in foreign elections of U.S. citizenship. The Court cited Curtiss-Wright for the proposition that the Constitution conferred on the federal government a general foreign affairs power. It commented, “The States that joined together to form a single Nation and to create, through the Constitution, a Federal Government to conduct the affairs of that Nation must be held to have granted that Government the powers indispensable to its functioning effectively in the company of sovereign nations.”258 Moreover, this sovereign power over foreign affairs extended beyond the maintenance of diplomatic relations with foreign sovereigns or the protection of American citizens traveling abroad. In the Court’s view, it also encompassed legislation necessary to “reduce to a minimum the frictions that are unavoidable in a world of sovereigns sensitive in matters touching their dignity and interests.”259 The Court examined the legislative history of the Nationality Act, finding that one of the primary motivations behind it was concern about the actions of U.S. citizens abroad that might create friction with foreign sovereigns. Thus, the Court held that, in enacting the Nationality Act, “Congress was seeking to effectuate its power to regulate foreign affairs.”260 The Perez Court’s sovereign powers approach seemed to envision a far more robust role for the courts in examining the reach of federal power. In stark contrast to Harisiades, here, perhaps because the rights of a U.S. citizen were at stake, the sovereign powers approach did not require automatic judicial deference to the political branches. Instead, the Court emphasized, “Broad as the power in the National Government to regulate foreign affairs must necessarily be, it is not without limitation. The restrictions confining Congress in the exercise of any of the powers expressly delegated to it in the Constitution apply with equal vigor when that body seeks to regulate our relations with other 253 254 255 256 257 258 259 260

Id. at 586. Id. at 588–89. Id. at 589. Id. 356 U.S. 44 (1958). Id. at 57. Id. Id.

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nations.”261 Accordingly, the Court held that a rational nexus must exist between the Nationality Act’s withdrawal of citizenship and Congress’s asserted purpose for enacting the statute – the regulation of foreign affairs. Because voting by U.S. citizens in foreign elections could result in friction with foreign sovereigns, the Court concluded that such a basis existed and upheld congressional power to enact the statute.

C. Individual Rights Perhaps the most striking feature of the Court’s post–World War II case law was the dramatic rise of international law in interpreting (and expanding) constitutional rights. Early in the period, the Court decided one case in which it utilized international law to limit constitutional rights. In Roth v. United States,262 the Court cited international law in upholding a federal obscenity statute against a First Amendment challenge. The Court reviewed the history of the First Amendment, concluding that “implicit in [this] history . . . is the rejection of obscenity as utterly without redeeming social importance.”263 As further support for this view, the Court cited (along with the obscenity laws of the fortyeight States and numerous federal obscenity laws) an international treaty on obscenity to which the United States was a party.264 The Court did not assert any international legal obligations that the United States might have had under the treaty; indeed, it did not mention the United States’ status as party to the treaty. Rather, the treaty seemed to provide confirmation for the Court’s reading of the history of the First Amendment: its “rejection of obscenity is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations.”265 Just one year after its decision in Roth, the Supreme Court began to utilize international law to expand the scope of constitutional rights. In the Court’s seminal decision in Trop v. Dulles,266 Chief Justice Earl Warren, writing for a four-member plurality, relied heavily on international sources to interpret the Eighth Amendment’s Cruel and Unusual Punishment Clause. At issue in the case was a provision in the Nationality Act that divested U.S. citizens of their citizenship as punishment for desertion from the U.S. military. The plurality held that the provision violated the Eighth Amendment’s prohibition on cruel and unusual punishment. It reasoned that the prohibition “[drew] its meaning from the evolving standards of decency that mark the progress of a maturing society,” and it relied on international sources in examining the content of these “evolving standards of decency.”267 In the plurality’s view, deprivation of citizenship was “offensive to cardinal principles for which the Constitution stands,” because it left an individual “stateless, a condition deplored in the international community of democracies.”268 Chief Justice Warren surveyed the practice of other nations on the issue, citing a United Nations survey on 261 262 263 264 265 266 267 268

Id. at 58. 354 U.S. 476 (1957). Id. at 484. See id. at 485 (citing the Agreement for the Suppression of the Circulation of Obscene Publications, 37 Stat. 1511; Treaties in Force 209 (U.S. Dept. State Oct. 31, 1956)). See id. 356 U.S. 86 (1958). Id. Id. at 102 (citing United Nations report on statelessness).


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nationality laws for the proposition that “[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for a crime.”269 The remaining five Justices in Trop did not voice any disagreement with the notion that international sources were relevant to interpreting the Eighth Amendment. Indeed, the four-member dissent, led by Justice Felix Frankfurter, relied on the very same UN survey of nationality laws. The dissent offered an alternative interpretation of the survey, finding in it support for the proposition that “[m]any civilized nations impose loss of citizenship for indulgence in designated prohibited activities,” including some that imposed it for wartime desertion. Based in part on this evidence, the dissent argued that denaturalization as punishment for desertion “cannot justifiably be deemed so at variance with enlightened concepts of ‘humane justice’” as to violate the Eighth Amendment.270 Five years after Trop, modern international human rights law made its first appearance in the Court’s constitutional interpretation. At issue in Kennedy v. Mendoza-Martinez271 was yet another provision of the Nationality Act that divested American citizens of their citizenship for leaving the United States in times of war or national emergency for the purpose of evading the military draft. In striking down the provision, the Court noted the dire consequences that would result from denaturalization in these circumstances. It briefly discussed international law on statelessness, this time emphasizing that “[t]he drastic consequences of statelessness have led to reaffirmation in the United Nations Universal Declaration of Human Rights . . . of the right of every individual to retain a nationality.”272 The Court also pointed out that treatises on international law unanimously disapproved of laws that denationalized individuals without regard to whether they have dual nationality. It concluded that the statutory provision violated the procedural safeguards guaranteed by the Fifth and Sixth Amendments.273 The post–World War II case law on denaturalization revealed a striking – and, for the Court, increasingly uncomfortable – paradox in the Court’s use of international law. A comparison of the Court’s decisions in Trop and Perez (decided the same day) is instructive. Both Trop and Perez addressed the constitutionality of different provisions of the Nationality Act of 1940 – in Trop, denaturalization as a result of desertion from military service, and in Perez, denaturalization as a result of voting in a foreign election. In Perez, application of the sovereign powers approach led the Court to uphold denaturalization as a necessary and proper exercise of Congress’s sovereign power to regulate foreign affairs. In Trop, by contrast, application of international law led the Court to reject denaturalization as a violation of the Eighth Amendment. As Justice William Brennan conceded in his concurring opinion in Trop, the results were “paradoxical” in that they “justif[ied] as constitutional the expatriation of the citizen who has committed no 269 270 271 272 273

Id. at 104–05. Id. at 127 (Frankfurter, J., dissenting). 372 U.S. 144 (1963). Id. Foreign and international law sources also made an appearance in Schneider v. Rusk, 377 U.S. 163 (1964), in which the Court struck down a provision of the Immigration and Naturalization Act (INA) providing for denaturalization of naturalized citizens who resided continuously for three years or more in the country of their birth. Id. In his dissenting opinion, Justice Clark, joined by two other Justices, cited the practices of twenty-nine countries that required expatriation of naturalized citizens living abroad as support for the validity of the INA provision. He also pointed out that the United Nations Convention on the Reduction of Statelessness permitted expatriation of naturalized citizens under certain circumstances. See id. at 173–74 (Clark, J., dissenting).

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crime . . . , yet find unconstitutional [the expatriation] of a soldier guilty of the very serious crime of desertion in time of war.”274 In the face of this paradox and of Perez’s growing inconsistency with the Court’s other case law finding denaturalization unconstitutional, the Court in Afroyim v. Rusk275 overturned its holding in Perez. It held that the statutory provision providing for denaturalization as a result of voting in a foreign election violated the Fourteenth Amendment. In so doing, the Court explicitly rejected the sovereign powers approach on which Perez was grounded. It held that Congress did not possess “any general power, express or implied, to take away an American citizen’s citizenship without his assent”276 – it enjoyed only those powers specifically granted to it in the Constitution. Thus the power to deprive U.S. nationals of their citizenship “cannot, as Perez indicated, be sustained as an implied attribute of sovereignty possessed by all nations.”277 The Court emphasized, instead, that “[i]n our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.”278 It concluded, “To uphold Congress’ power to take away a man’s citizenship because he voted in a foreign election . . . would be equivalent to holding that Congress has the power to ‘abridge,’ ‘affect,’ ‘restrict the effect of,’ and ‘take . . . away’ citizenship” in violation of the Fourteenth Amendment.279 The evolution in the era’s denaturalization case law also suggests the Court’s increased willingness to utilize international law to support constitutional constraints on federal power. The era began with Perez’s affirmation of Congress’s “sovereign power” to regulate U.S. citizenship. Later cases such as Mendoza-Martinez, however, relied on international human rights law to limit Congress’s power to take away citizenship. The Court’s denaturalization jurisprudence came full circle with Afroyim’s outright repudiation of Perez and its grounding in sovereign powers. While Afroyim did not explicitly rely on international human rights law in its analysis, it privileged the rights of individuals over the power of the state and embraced the notion that “[i]n our country the people are sovereign.” In the latter part of the post–World War II period, foreign and international sources continued to appear in the Court’s Eighth Amendment jurisprudence, in the process morphing into the Court’s use of the vague term “international opinion.” Justice Byron White first used the term in his opinion for the Court in Coker v. Georgia,280 holding that the Eighth Amendment prohibited use of the death penalty against individuals convicted of rape. He relied on Trop v. Dulles as a license, noting that the Trop plurality “took pains to note the climate of international opinion concerning the acceptability of a particular punishment.”281 He noted that it was “thus not irrelevant” that a United Nations survey on the practices of the world’s major nations indicated that only three other nations retained the death penalty for rape where death did not ensue.282 274 275 276 277 278 279 280 281 282

Id. 387 U.S. 253 (1967). Id. at 257. Id. Id. Id. at 267. 433 U.S. 584 (1977). See id. at 596 n.10. See id.


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In Enmund v. Florida,283 Justice White again cited “the climate of international opinion” in holding that the Eighth Amendment barred application of the death penalty to individuals convicted of felony murder. Citing Coker for the proposition that “[t]he climate of international opinion . . . is an additional consideration which is ‘not irrelevant,’”284 he discussed abolition of the death penalty for felony murder convictions across the British Commonwealth and in continental Europe. As the twentieth century drew to a close, the use of “international opinion” in constitutional interpretation became a source of contention among the Justices. At issue in Thompson v. Oklahoma285 and Stanford v. Kentucky286 was the constitutionality of the death penalty as applied to juvenile offenders. In Thompson, the Court held that the Eighth Amendment’s ban on cruel and unusual punishment prohibited execution of individuals who were 15 years old at the time of the crime. Justice John Paul Stevens, writing for the Court, noted that the practice must be judged against the “evolving standards of decency” test articulated in Trop. He discussed state legislation on the execution of juvenile offenders, as well as other domestic sources, and concluded that the use of capital punishment against 15-year-olds was inconsistent with modern standards of decency. Justice Stevens utilized what he termed “the views of the international community” to confirm this conclusion, noting that it was “consistent with the views that have been expressed . . . by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.”287 Justice Stevens surveyed practices in several European countries, as well as various members of the British Commonwealth, all of which prohibited execution of juvenile offenders. He also cited three major human rights treaties (only one of which had been ratified by the United States at the time) that prohibited the juvenile death penalty.288 Thompson v. Oklahoma also presents striking early evidence of what would become an important twenty-first-century phenomenon: the emergence and growing influence of so-called transnational norm entrepreneurs289 in the Court’s Eighth Amendment jurisprudence. Justice Stevens explicitly noted his reliance on the amicus curiae brief of Amnesty International for his understanding of the practices of foreign nations with regard to the juvenile death penalty. Justice Scalia, writing for a three-member dissent, complained that this reliance was misplaced. He argued, “Amnesty International’s account of what it pronounces to be civilized standards of decency in other countries . . . is totally inappropriate as a means of establishing the fundamental beliefs of this Nation.”290 Nor did Justice Scalia limit his criticism to the Court’s reliance on transnational norm entrepreneurship in discerning the content of “international opinion.” He also registered his belief that international opinion was simply irrelevant to the Court’s Eighth 283 284 285 286 287 288

289 290

458 U.S. 782 (1982). Id. at 796–97 n.22. 487 U.S. 815 (1988). 492 U.S. 361 (1989). See 487 U.S. at 830–31. See id. n.34 (citing the International Covenant on Civil and Political Rights (signed but not yet ratified by the United States), the American Convention on Human Rights (signed but not ratified), and Article 68 of the Geneva Convention (ratified by the United States)). See, e.g., Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 Hous. L. Rev. 623 (1998). 487 U.S. at 869 n.4 (Scalia, J., dissenting).

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Amendment jurisprudence. He noted that 40 percent of U.S. States had not prohibited capital punishment for 15-year-old felons and argued that this fact “is determinative of the question before us here, even if that position contradicts the uniform view of the rest of the world.”291 He chided the Court: “We must never forget that it is a Constitution for the United States of America that we are expounding.”292 Justice Scalia also offered a theory for when the practices of foreign nations might be relevant in constitutional analysis. He asserted, “The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so ‘implicit in the concept of ordered liberty’ that it occupies a place not merely in our mores but, text permitting, in our Constitution as well.” By contrast, “where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.”293 Just a year after Thompson, the Court revisited the debate over the relevance of international opinion in Stanford v. Kentucky,294 holding that the Eighth Amendment did not prohibit use of the juvenile death penalty against 16- and 17-year-olds. Justice Brennan, writing for a four-member dissent, again asserted the relevance of international opinion, noting, “Our cases recognize that objective indicators of contemporary standards of decency in the form of legislation in other countries is also of relevance to Eighth Amendment analysis.”295 Again relying on Amnesty International’s amicus curiae brief and other evidence of foreign practice discussed in Thompson, Justice Brennan concluded, “Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved.”296 Justice Scalia, this time writing for a four-member plurality, reemphasized his position that “it is American conceptions of decency that are dispositive.”297

V. Conclusion The post–World War II era witnessed many changes in the Supreme Court’s use of international law as an interpretive tool. International law notions of territorial sovereignty faded from the Court’s constitutional jurisprudence and were replaced by a growing interest in the use of modern international human rights law in interpreting the constitutional rights of U.S. citizens. In statutory interpretation, the historical Charming Betsy canon diminished in importance in many areas, as the Supreme Court increasingly relied on canons such as the presumption against extraterritoriality or the later-in-time rule to define the reach of federal statutes or to resolve treaty conflicts. In areas (such as maritime law) where Charming Betsy still held sway, the Court struggled to define the exact purpose of the canon or to provide consistent theoretical justifications for its use.

291 292 293 294 295 296 297

Id. (Scalia, J., dissenting). Id. (Scalia, J., dissenting). Id. (Scalia, J., dissenting). 492 U.S. 361 (1989). Id. at 389 (Brennan, J., dissenting). Id. at 390 (Brennan, J., dissenting). Id. at 369 n.1.


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In short, the post–World War II era was a period of both decline and resurgence for international law as an interpretive tool before the Supreme Court. The Court grappled with two key phenomena that characterized the period: first, the rise of new and increasingly complex international treaty regimes in a host of arenas (such as immigration and human rights), and second, the concomitant rise of the executive branch in addressing the nation’s relations with the rest of the world. In this brave new postwar world, the Court struggled to define both the proper relationship between international and domestic law, as well as the Court’s own place in shaping that relationship.

13 Global Power in an Age of Rights: Historical Commentary, 1946–2000 Martin S. Flaherty∗

A good historical account seeks to make out the big picture from small facts. Reviews of a given interpretation therefore range from grand theoretical critiques to picking the smallest nits, often at the same time.1 When provided with not one but three meticulous chapters, commentary becomes an even greater challenge in each regard. No big picture at first seems clear and not just because here are three separate treatments of three discrete aspects of the Supreme Court’s use of international law. More importantly, the post–World War II era appears to stand in stark contrast to a period such as the Founding. It seems fairly apparent that, at the Founding, doctrine followed the reality that the United States was a small, fledging Republic seeking the protection of the law of nations.2 By contrast, doctrine in the postwar period seems at times internationalist and at times nationalistic within all three categories: treaties, custom, and interpretation. The disarray seems all the more odd given what should have happened. No more obvious development in foreign affairs characterized the era than the United States’ emergence as the preeminent superpower, rivaled only by the Soviet Union. It would follow that, just as the new Republic embraced international law in its infancy, the new hegemon would ignore it in its maturity. The main likely exception would be those instances when international law facilitated rather than obstructed U.S. foreign policy goals. This exception, moreover, could be substantial insofar as a hegemon such as the United States would be in a position to exert a disproportionate influence on the development of international law in its favor.3 As it would happen, nowhere would U.S. influence be greater than in the fields of international trade and commerce. For a host of reasons, international human rights would prove more problematic, in part because rights by definition constrain the states that create them and in part because they ∗

1 2

3

Leitner Family Professor of International Human Rights Law, Fordham Law School; Co-Founding Director, Leitner Center for International Law and Justice; Visiting Professor, Woodrow Wilson School of Public and International Affairs, Princeton University. See Edmund S. Morgan, The Genuine Article (2004) (collecting reviews by a leading historian). See Chapter 1, pp. 44–46; see also Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 Colum. L. Rev. 2095, 2112–51 (1999) (recounting how U.S. failure to uphold treaty commitments and resulting fear of international retaliation led to the Founders’ rendering treaties self-executing under the Supremacy Clause). See Robert O. Keohane & Joseph S. Nye, Jr., Power and Interdependence: World Politics in Transition (1977).

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Global Power in an Age of Rights

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constrain allies as well. After playing an initial leadership role, the United States would largely withdraw from the development of international human rights law and approach the limitations it imposed warily.4 Professors Paul Stephan, William Dodge, and Melissa Waters write against the backdrop of this reality. Among them, Professor Stephan is the most explicit in speaking of “the United States’ new and unprecedented international engagements,” a collective assertion of postwar power that paradoxically was discounted by the belief that “the United States faced a real threat of annihilation due to Soviet nuclear capability.”5 All three accounts, however, show that the picture was not quite that simple. Each account assembles examples of decisions facilitating the projection of power abroad by the other branches. Yet too many counterexamples surface to make the story straightforward. At the same time, an equally striking development within the Supreme Court was its postwar entrenchment of fundamental rights. Professor Stephan again notes an aspect of the larger trend, observing that “the Court found itself increasingly involved in a civil rights revolution that was mostly framed by distinct U.S. problems of race.”6 Surely the Warren Court could have found a natural ally in the even more revolutionary emergence of international human rights law to check abusive government power at home and abroad. The supposition becomes only stronger given Mary Dudziak’s recent work showing how foreign policy considerations swayed the other branches toward responding to the civil rights movement.7 Some evidence for this emerges, but the chapters nonetheless make clear that any expected grand fusion of domestic fundamental rights and their international counterpart did not occur. That neither of the most likely scenarios occurred pure and simple may nonetheless help in sketching out the big picture that actually did take shape. Taken together, the major relevant postwar developments suggest a sometimes contradictory yet ultimately coherent story marked by the Court’s shift from power to rights. The story follows a pattern in four parts with regard to all three aspects of international law – treaties, custom, and interpretation – in the Court. Not all of the four shifts in these areas occurred at exactly the same time. But with lags and overlaps, each of these areas of international law experienced similar developments. The first part of the story, which runs from the end of World War II through the mid1950s, reflects the confirmation of the United States as a global leader. For the most part, the relevant Supreme Court decisions assist the other branches, especially the Executive, in asserting the nation’s power beyond U.S. borders. In this effort, classical conceptions of international law served as a resource for promoting the nation’s new role as a superpower that was nonetheless confronted by a dangerous rival. Such use of international law came with regard to military and related authority. At the same time, the chapters show that the Court also deployed international law to expand U.S. economic and regulatory power as well.

4 5 6 7

For a general account, see Louis Henkin, The Age of Rights (1990). See Chapter 10, p. 318. Id., p. 318. Mary L. Dudziak, Cold War Civil Rights, Race and the Image of American Democracy (2000) (describing how the need to court postcolonial nations in the context of the Cold War pushed U.S. policymakers to take steps against racial segregation).

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The next stage witnessed the start of the modern rights revolution. Starting at least with Brown v. Board of Education,8 the Court increasingly favored liberty over power. At some point one would have expected that the Court’s power-oriented stance toward international law would bow to the congruence of the Warren Court with the contemporaneous development of international human rights law, a confluence Louis Henkin has aptly dubbed “The Age of Rights.”9 Even before Brown, litigants and some courts saw the potential synergy between constitutional and international rights.10 Yet for the most part the alliance between the two sources of rights never came to fruition. The accounts in this section show that, where international law was available either through congressional incorporation, custom, or interpretive canons, the Court would on occasion turn to it to bolster its expansion of home-grown rights. But for the most part, the rights revolution was a domestic affair. One question that all three contributions raise is just why this was the case. Several factors appear relevant. International human rights law, more clearly than even the Civil War amendments, made racial equality a central concern. It followed that those who opposed the dismantling of American apartheid through the Constitution would fight with even greater vigor against standards seen as foreign, an impulse first manifest in the Bricker Amendment controversy. The Cold War also stunted domestic invocation of international human rights. Social and economic rights, despite their New Deal provenance, were easy to dismiss as socialist, while more familiar civil and political rights could conversely be discounted as redundant.11 The decline of international law in American legal education would have played a further role, especially as those who became judges and Justices during this postwar period would have obtained their training as the subject reached its domestic nadir. As doctrinal accounts, the chapters do not explain how these or other factors worked to prevent a greater synergy of international and domestic rights law. What matters is that they bring the question into sharper focus. A third chapter of the postwar story begins in the mid-1970s, first with a slowdown in the expansion of constitutional rights with the Burger Court and then with an eventual pushback under Chief Justice William Rehnquist. This too is mainly a domestic tale. The Court’s shift occurred for many reasons, not least because of increasingly conservative appointments, starting with those made by President Nixon. Once more, international law rarely figured, especially in the service of fundamental rights, for the same reasons it was mostly missing in action previously. The final part commenced in the late 1980s and is with us still. It features the long awaited deployment of international human rights law, which in turn triggered strident opposition, resulting in an ongoing, high-stakes struggle over the proper role of international law in domestic adjudication. To an extent, an increased use of international 8 9 10 11

347 U.S. 483 (1954). Henkin, supra note 4. See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 183–94, 213 (2004). See Eleanor D. Kinney, Recognition of the International Human Right to Health and Health Care in the United States, 60 Rutgers L. Rev. 335, 345 (2008) (“[T]he United States was reluctant to embrace economic rights because of a perceived socialist connection that was not consistent with American foreign policy.”) (citing Robert Traer, U.S. Ratification of the International Covenant on Economic, Social, and Cultural Rights, in Promises to Keep: Prospects for Human Rights 1, 3–5 (Charles S. McCoy ed., 2002)).


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law came about as rights-oriented Justices, continuing to lose ground with purely domestic sources, cast about for new ammunition. In this sense international human rights might be seen as a partial response to the conservative brand of originalism that emerged with far greater success at just this time. Yet perhaps to a greater extent, resort to international law in general appeared foreordained. Globalization bolstered the processes that pushed toward greater judicial use of international norms in domestic law. The end of the Cold War, greater economic integration, and, not least, the greater opportunities that judges around the world have to meet and cite one another all augur for the greater internationalization of U.S. Reports.12 For these reasons, the Court began to answer the call in controversial areas. Conversely, opponents of judicial extension of rights have opposed reliance on international and comparative sources exactly because of their potential power. As the period closed, the foundation had been laid for the distinctively American skepticism about the common global practice of judicial borrowing from outside legal sources. Beyond these episodes, the chapters in this part also address debates involving history and international relations. Postwar doctrinal developments set forth here suggest a middle ground in perhaps the classic debate in legal history. On the one hand, power drives legal development, while on the other, the law retains some independent capacity to constrain power.13 Just as cases such as United States v. Alcoa14 extended U.S. legal authority abroad, so too did landmarks like Reid v. Covert15 keep that power within constitutional limits. By contrast, from the standpoint of international relations scholarship, these treatments tend to come down on one side of a different dispute, supporting the liberal vision of international relations, through which foreign policy is not a story of monolithic nation-states interacting with one another, but rather of interests within nations competing to influence foreign policy.16 The Supreme Court often marshaled international law in the service of the Executive, Congress, or powerful private interests seeking to project American might abroad. But as the cases toward the end of the period would show, the Court also asserted itself, generally when international law paralleled its own domestic rights revolution. Finally, filling in this larger picture in part requires the other common feature of historical critique: picking nits – or at least offering a rival understanding of the basic developments that serve as the foundation for any greater narrative.17 Not surprisingly, the three accounts are difficult to fault on the doctrinal level that is their common focus. Difficult, however, does not mean impossible. At some points the chapters offer contested or idiosyncratic interpretations of certain decisions. At others they overlook context that is relevant to achieving better accounts. All that said, these alternative understandings are far and away the exceptions. 12 13

14 15 16 17

See Martin S. Flaherty, Aim Globally, 17 Const. Comment. 205 (2000). Compare Julius Goebel, Jr., Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (1971) (arguably an account of developments primarily “internal” to the law) with James Willard Hurst, Growth of American Law: The Lawmakers (1950) (extolling an “external” approach to legal history); William E. Nelson, Americanization of American Law, The Impact of Legal Change in Massachusetts Society, 1760–1830 (1994) (same). 148 F.2d 416 (2d Cir. 1945). 354 U.S. 1 (1957). See, e.g., Anne-Marie Slaughter & Laurence R. Helfer, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 Cal. L. Rev. 899 (2005). Martin S. Flaherty, The Most Dangerous Branch, 105 Yale L.J. 1725, 1749 (1996).

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The authors, here as throughout the book, have succeeded at the thankless task of following the various flows, eddies, and back channels of the Supreme Court’s decisions invoking international law. However complex, they provide the basis for hazarding the framework that follows. Ideally, that framework in turn should help explain how the Supreme Court moved from the Founding’s thoroughgoing embrace of international law to its current heated debate over whether that embrace should cease altogether or become even stronger.

I. Treaties The Supreme Court’s use of treaties in the postwar era set the pattern for its approach to international law in general. It would be only a slight overstatement to say that treaty law expanded in shape and size to such an extent that it came close to constituting international law in general.18 Starting with the United Nations Charter, the postwar era witnessed a breathtaking increase in the number of international agreements as well as the subject matter they addressed, including and especially how nations safeguarded the fundamental rights of persons within their jurisdiction. At first blush, the Court’s response to this growing body of law appears so complex, varied, and compartmentalized as to defy generalization. Professor Stephan’s rigorous survey works only to increase the challenge. By his own count, he has reviewed 130 cases in which at least one opinion referenced an international compact,19 covering a wide range of public and private law issues. As he himself writes, the picture that emerges may not be “completely incoherent,” but it is “puzzling.”20 Even where he squints to see certain patterns, they defy a grand theme. The Court did not treat all international agreements alike; it did not duck construing them when necessary; it sometimes took treaties as evidence that an area had become removed from state lawmaking. Taken together, the resulting doctrine “may seem sloppy and inconsequential,” however much it is laudably pragmatic.21 With additional squinting, there may be a larger pattern still. Much, although not necessarily all, of what Professor Stephan describes reflects the idea that the Court initially deployed treaty law in ways that best served the United States as an emerging yet embattled superpower. For better or worse the Court did this mainly by ceding its role in the separation of powers. One route was to defer to the political branches in treaty implementation by enforcing international obligations when one or both branches so desired, but ignoring those obligations when they did not. Another approach was to permit international agreements to become a source of executive authority in particular. Notable in each regard was the extension of the Court’s deference to U.S. efforts to project power abroad both politically and economically. If the global power theme emerges this way, so does a rights story, although on Stephan’s telling it is less an “age” of fundamental liberties than an episode. And even here the Court’s actions arguably have as much to do with countering States’ rights as with promoting individual rights. By the 1960s the Court began handing down a series of decisions invoking treaties to block state lawmaking in areas traditionally seen 18 19 20 21

See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 801, 847 (1995). See Chapter 10, p. 319. Id., p. 319. Id., p. 320.


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as core local concerns, such as property ownership and wills. The best known of these involved state attempts to alter inheritance rights with a view to countering the policies of Communist regimes.22 But that is about as far as treaties went insofar as defending rights was concerned, even as the period wore on. This gap stands in contrast to the Court’s reliance on international custom and on international law as an interpretive guide.23 Treaties therefore present in starkest form the question of why there was not a greater synergy between the domestic and international “ages” of rights. The reasons in the main go beyond the doctrine that Professor Stephan recounts and include race, the Cold War, and the decline of international legal education, among others. Surprisingly, Stephan’s account overlooks a threshold doctrinal reason for the Court’s failure to invoke human rights instruments. As a matter of black letter law, they were simply unavailable. The watershed, or more accurately the dam, was the Bricker Amendment controversy. This battle squarely joined the issue of what place treaties – or at least the new species of human rights treaties – would play in U.S. law. In stark contrast to the internationalist orientation of the Founding, the impetus for this conflict sprang from those opposing international law. This opposition sprang from contradictory impulses and reflected the schizoid stance that the United States would take to the very international human rights law that it initially fostered. Some argued that such treaties were superfluous given America’s exemplary record of liberty. More significantly, others felt that precisely because of the conflict between international law’s new commitment to equality and America’s persisting version of apartheid, the rights contained in international human rights treaties should not become part of domestic law. The tangible result was Senator Bricker’s proposal to amend the Constitution to make all treaties non-self-executing, which, if adopted, would have blocked the threat of courts enforcing human rights instruments directly.24 But the consequences were the same as if Bricker had succeeded. Without President Eisenhower’s opposition, the Bricker Amendment might well have won congressional approval. The price the administration paid was a political commitment not to accede to human rights treaties, even though the United States, in the person of Eleanor Roosevelt, had taken the lead in drafting those instruments. Standard U.S. practice became not to sign or ratify human rights treaties. Even when that practice shifted under President Carter, the Senate would invariably attach a declaration of non-self-execution.25 Had the Court truly desired to link up with the international human rights movement, it could have found a way around this hurdle as it did around others.26 To be sure, certain treaties did provide the Court with the opportunity to adjudicate fundamental rights claims, opportunities that the Justices took in Sale v. Haitian Centers Council, Inc.,27 22 23 24 25

26

27

See, e.g., Clark v. Allen, 331 U.S. 503 (California inheritance statute superseded by treaty). See Chapter 12, pp. 412–14. Duane Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s Political Leadership (1988). See Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567 (1997) (describing the federal government’s consistent practice of attaching reservations, understandings, and declarations (RUDs) to human rights treaties). See David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129 (1999) (exploring options for judicial enforcement of non-self-executing treaties). 509 U.S. 155 (1993) (considering the 1951 Refugee Convention and 1967 Refugee Protocol).

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United States v. Alvarez-Machain,28 and Breard v. Greene.29 Yet these instances were the exceptions. The treaties involved in these cases were either not principally devoted to the protection of human rights or did not implicate common practices within U.S. territory. As such, they flew under the Senate’s radar and failed to trigger declarations of non-self-execution, thus making them available to the Court. The anomalous nature of these cases confirms the larger point: the Supreme Court during this period generally did not invoke treaties in the defense of individual rights. This failure, however, cannot be fully understood without acknowledging that the Court’s access to those treaties that principally safeguarded fundamental rights was blocked. No one can say what the Court would have done had the Senate not rendered these treaties non-self-executing, not to mention further limiting their substance through reservations and understandings. But the Court never had that chance. The United States never ratified the International Covenant on Economic, Social and Cultural Rights,30 and it attached non-self-executing declarations to the International Covenant on Civil and Political Rights,31 the Convention for the Elimination of All Forms of Racial Discrimination,32 and the Convention Against Torture.33 Thus, all these treaties were beyond the Justices’ reach. At least in foreign affairs, the postwar period began with the Court more concerned about power than rights. This concern meant facilitating the projection of U.S. power abroad, both public and private. Nowhere would this effort be clearer than in the Justices’ attitude toward treaties in the separation of powers. Professor Stephan rightly notes this phenomenon by name with regard to judicial deference to the other branches in treaty implementation. He also notes it separately in recounting the Court’s role in enhancing the Executive’s foreign affairs authority. Both developments are facets of separation of powers, although considering them discretely remains useful. Professor Stephan’s account demonstrates that in the early treaty cases the Court would engage treaty law analysis when Congress, the Executive, or both endorsed domestic application. Significantly, the Court established this pattern most clearly with regard to military matters in the aftermath of World War II. Each of the opinions in In re Yamashita undertook serious analysis of the 1929 Geneva Conventions as applied to a trial within effective U.S. jurisdiction, but only in light of their incorporation by Congress in the Articles of War.34 Conversely, Johnson v. Eisentrager, while dismissing Geneva Convention claims on the ground that habeas jurisdiction did not extend beyond U.S. territory, further stated that enforcement of Convention claims lies with military and political authorities, rather than direct, unilateral judicial enforcement.35 No less importantly, treaties worked to confirm the government’s assertion of postwar power. The 28 29 30 31 32 33 34 35

504 U.S. 665 (1992) (considering Extradition Treaty, May 4, 1978 [1979] United States-United Mexican States, 31 U.S.T. 5059). 523 U.S. 371 (1998) (considering Vienna Convention on Consular Relations). International Covenant on Economic, Social and Cultural Rights, opened for signature Dec. 16, 1966, 993 U.N.T.S. 3. International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, 1465 U.N.T.S. 85. 327 U.S. 1 (1946). 339 U.S. 763 (1950).


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same points apply to APW Paper, with the exception that in this decision the Court’s rejection of a naked treaty claim, unaccompanied by statutory incorporation, vindicated U.S. corporate power, although not necessarily of a transnational nature.36 As Professor Stephan notes, the Court’s willingness to interpret treaties to facilitate the projection of U.S. power continued throughout the period. Notable in this regard is the Justices’ vindication of government power against treaty-based claims in Sale,37 the first Alvarez-Machain case,38 and Breard.39 Of these, Sale arguably stands apart, given apparent congressional intent to implement the Refugee Convention in a robust manner.40 Even assuming such a purpose, Sale’s negative result might nonetheless be explained away, given the presumption against the extraterritorial application of federal statutes. The other cases better fit Stephan’s pattern. To be sure, neither of the treaties in these cases required legislative implementation. Yet neither did Congress in any way signal support for the rights at issue, in contrast to its stance in support of extending U.S. power in the earlier cases. More complex and various are the postwar Justices’ decisions relating to the expansion abroad of private American power. This area mainly involved interpretation of regulatory statutes. Professor Stephan explains the developments here also as a matter of the Court following the lead of the political branches in determining how far to extend relevant treaty obligations. Once more, where treaties complemented legislative or executive initiatives, the Court embraced them; where treaties got in the way, they received a judicial cold shoulder.41 Yet complementing this pattern was another one. Especially in the first part of the period, the foreign policy initiatives undertaken by the political branches that the Court facilitated themselves tended to promote either the expansion of U.S. economic influence or the federal government’s ability to regulate such influence.42 36 37 38 39 40 41 42

FTC v. A.P.W. Paper Co., 328 U.S. 193 (1946). Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993). United States v. Alvarez-Machain, 504 U.S. 655 (1992). Breard v. Greene, 523 U.S. 371 (1998). Sale, 509 U.S. at 205–07 (Blackmun, J., dissenting) (arguing that Congress sought to implement the Refugee Convention in a manner that gives application of its principles full scope). See Chapter 10, pp. 322–31. Many, although not necessarily all, leading decisions can be understood in this way. In Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948), and more notably in Steele v. Bulova Watch Co, 344 U.S. 280 (1952), the Court under different theories extended regulatory statutes abroad. Vermilya applied the Fair Labor Standards Act abroad on the ground that a U.S. naval base constituted a “possession” under the meaning of the statute. Steele more importantly extended the Lanham Act where trademark violations abroad directly threatened the interests of a then-major U.S. corporation. Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949), conversely declined to extend the Eight Hour Act to American workers in Iraq and Iran. Technically, the result reflected the absence of any indication that Congress desired extraterritorial application; more broadly the outcome also may have had something to do with a parallel absence of any obvious negative impact on U.S. commercial interests in a wholly foreign location. Beyond extraterritoriality, other cases reflect similar concerns. In Pfizer, Inc. v. Government of India, 434 U.S. 308 (1978), the Court permitted foreign sovereigns to sue under the Sherman Act, further enlarging the scope of U.S. antitrust authority abroad, a result that in turn strengthened the American conception of competitive markets. As Stephan notes, the Court took this step without any acknowledgment of Chief Justice Burger’s dissenting observation that the step would discourage nations from entering into cooperative antitrust agreements with the U.S. The Court even more forcefully dismissed treaty considerations in Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). There it followed the general purpose of the Foreign Sovereign Immunities Act to prevent the assertion of a claim against a sovereign, even to the point of arguably ignoring grandfather language through which two applicable treaties might have allowed the action to go forward. Id. at 441–43. The holding arguably

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More apparent, and more ominous, is the postwar Court’s enabling of executive power in particular. Even here the picture is not uniform. Just at the point when one would expect the Court to be most compliant, it handed down Youngstown Sheet & Tube Co. v. Sawyer,43 the New Testament for advocates seeking to limit the President’s foreign affairs power.44 Given the overall “global power” theme apparent at the outset of this period, Youngstown becomes an even more striking case. Tellingly, as Professor Stephan notes, the only reliance on international agreements came from the dissenters, who would have upheld the President’s assertion of power.45 Although the argument failed in Youngstown, the nexus between executive authority and accords with foreign governments would be a winning proposition throughout most of the period. Executive agreements served as one source for presidential power. Judicial approval for sole executive agreements, which relate to express or implied grants of executive authority, predates the postwar period.46 So too does endorsement of executive agreements through congressional delegation. The postwar period nonetheless saw a continuing increase in both types of instruments. The Court, moreover, continued to approve, with some of the most significant instances occurring even after the immediate postwar period, when judicial use of international law in the service of government power was at its height. As the era unfolded, the Justices effectively permitted the President to use an international agreement to bypass a statute that could plausibly be read to invalidate that agreement.47 Twenty-five years later, in Dames & Moore v. Regan,48 the Court upheld the Reagan administration’s use of an executive agreement to extinguish a pending court claim. In the bargain, it produced an ongoing debate as to whether the Court’s reasoning inverted Youngstown by relying on a vague articulation of relevant custom, rather than the type of specific, unbroken tradition that Justices Felix Frankfurter and Robert Jackson seemed to envision.49 As Professor Stephan usefully notes, Weinberger v. Rossi50 further sanctioned executive agreements by characterizing them as “treaties” for statutory purposes even when concluded outside the Treaty Clause. Not surprisingly, each case in different ways ceded further power to the President regarding national security. More surprising, perhaps, is that these endorsements did not come earlier in the period. The judiciary can further empower the President by ceding its original role and deferring to executive interpretations of treaties. Ironically, Professor Stephan’s complex

43 44 45 46 47 48 49

50

reflects the Court’s desire for an especially clear indication from Congress to extend U.S. authority abroad, especially in instances – such as litigation against other nations – where the result would complicate rather than advance the policies of the political branches. An alternative explanation may follow from the timing of the decision. Coming as the last decade of the period unfolded, Hess may also signal a victory for those statists on the Rehnquist Court who viewed litigation against the government with skepticism. 343 U.S. 579 (1952). The Youngstown majority, arguably, is consistent with the understanding of the Founders. See Curtis A. Bradley & Martin S. Flaherty, Executive Essentialism and Foreign Affairs, 102 Mich. L. Rev. 525 (2004). See Chapter 10, pp. 332–33. See, e.g., United States v. Pink, 453 U.S. 203 (1942). See United States v. Guy W. Capps, Inc., 348 U.S. 296 (1955). 453 U.S. 654 (1981). Compare Harold H. Koh, The National Security Constitution: Sharing Power After the IranContra Affair 140 (1990) (arguing that Dames & Moore “inverted” Youngstown) with Harold H. Bruff, The Story of Dames & Moore: Resolution of an International Crisis by Executive Agreement, in Presidential Power Stories 369, 395–97 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009) (arguing that Dames & Moore was not a departure from Youngstown). 456 U.S. 25 (1982).


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account may not be complex enough. He argues that the Court’s rhetoric of deference is surprisingly infrequent, but that its practice of deference is strong, at least when the government is a party. While true as far as it goes, the topic requires unpacking in several ways. First, the Court’s occasional statements about deference have always been makeweights both before and during this period. Only after an opinion works its way through conventional treaty interpretation does the Court allude to the government’s interpretation as deserving some degree of “weight.” The point applies to just about every case in which such rhetoric occurs, including the following: In re Ross,51 Charlton v. Kelly,52 Factor v. Laubenheimer,53 Kolovrat v. Oregon,54 Sumitomo Shoji America, Inc. v. Avagliano,55 and El Al Israel Airlines v. Tsui Yuan Tseng.56 Second, although the trend of government victories in treaty cases is significant, the sample is not so broad that it establishes that deference in fact drove the decisions, absent controlling for other possible variables, especially in the absence of deference language. Finally, and perhaps most importantly, the language of deference tended to become more pronounced over time, and the academic advocacy of the idea became especially strong as the century closed.57 The ceding of treaty interpretation to the Executive in short is an idea whose time has not yet come, but may. So far the doctrine as stated is more apparent than real. That said, at century’s end judicial deference in this area seemed poised to become more than merely rhetorical. To this extent, the incipient rise of the doctrine reflects the competing deployment of international law in the period’s final decade. As the period ended, international law made prominent appearances in the aid of fundamental rights protection. Yet precisely for that reason, opponents of that trend either self-consciously opposed it directly, or – as with deference – promoted uses of international law in ways that assisted governmental power. Extensive on power, Professor Stephan has far less to say about rights. The desired or feared combination of domestic civil rights and their international counterparts simply failed to materialize. This failure persisted, moreover, during the second chapter of the postwar story, as the Court embraced “its ever growing role in broadening individual liberty and equality, especially against encroachment by state and local government.”58 To the contrary, where international agreements and constitutional rights cross paths 51 52 53 54 55 56

57

58

140 U.S. 453 (1891). 229 U.S. 447 (1913). 290 U.S. 276 (1933). 366 U.S. 187 (1961). 457 U.S. 176 (1982). 525 U.S. 155 (1999). But see David Sloss, United States, in The Role of Treaties in Domestic Courts: A Comparative Study 504–54 (David Sloss ed., 2009). In this chapter, Professor Sloss provides an empirical study of treaty application in U.S. courts. Cases are classified as “nationalist” or “transnationalist.” Cases in which a court says explicitly that it is deferring to the Executive are classified as “nationalist.” The analysis shows that, especially in the last thirty years, there is a statistically significant correlation between case outcomes and a court’s choice to adopt a nationalist or transnationalist approach. It remains the case, however, that at least in the Supreme Court, deference does not yield results that the Court would not otherwise have reached on its own, at least if one is to credit the relevant opinions themselves. See, e.g., John Yoo, Politics as Law? The Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 Cal. L. Rev. 851 (2001) (arguing for deference on the basis of the Executive’s superior institutional capacity in conducting foreign relations). See Chapter 10, p. 338. Professor Stephan himself places the Court’s extension of rights in the first half of the period. As noted, I believe that for present purposes a better view is that the expansion becomes a dominant domestic theme with Brown and continues into the 1980s.

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most famously, they do so as antagonists. When treaties do come to the aid of rights, they protect not fundamental liberties or equality, but instead safeguard property rights in a fairly arcane setting.59 Professor Stephan, however, too readily argues that the Court’s general indifference to international rights protections was a matter of its own choosing. Clearly, in relying on the Constitution the Warren Court in particular saw little reason to fix a doctrinal strategy that not only was not broken but also remained strikingly successful. That said, a focus on doctrine within the Court in this regard overlooks a crucial practice outside that in turn shaped the doctrine. Simply put, the Court during this period had little to work with because the United States did not sign or ratify many human rights treaties through most of the period. When it did, the Senate invariably attached declarations rendering the treaties non-self-executing and for good measure, added reservations and understandings (RUDs) limiting the substantive reach of any treaty obligations to whatever the Constitution and/or federal statutes provided. Even before the Court’s rights jurisprudence gained momentum, the Constitution either eclipsed treaties or in certain instances actually trumped them. Professor Stephan rightly notes that, while litigants from the first saw the potential of combining domestic and international rights arguments, the Court did not go beyond rhetoric. Here the high-water mark came in Oyama v. California;60 several Justices referred to the UN Charter’s antidiscrimination text as the majority overturned a state provision directed against those of Japanese ancestry. Those references, however, fell well short of what one California state court did when it invalidated a similar state law, resting squarely on the UN Charter as “the law of the land.”61 Stephan nonetheless might have pointed out that the Supreme Court’s refusal to take that step was overdetermined in doctrinal terms. Unlike later human rights treaties, Articles 55 and 56 of the UN Charter simply do not have the type of language generally associated with self-executing – in the sense of judicially enforceable – treaties.62 Moreover, at its birth just after World War II, the idea of human rights law on the international plane was revolutionary enough, let alone the idea that such law would automatically become part of domestic law. For just these reasons, the California Supreme Court took the same approach that the U.S. Supreme Court would take during this period, opting instead for the Constitution as a basis for asserting equal rights.63

59 60 61 62

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See Chapter 10, pp. 340–41 (discussing Clark v. Allen and related cases). 332 U.S. 633 (1948). Sei Fujii v. California, 217 P.2d 481 (Cal. Ct. App. 1950). Article 55 provides: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Article 56 provides: All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55. Sei Fujii v. State, 242 P.2d 617 (Cal. 1952).


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When international agreements do appear in the Court’s decisions with regard to a fundamental right, they do so as a threat – a threat, moreover, that is eventually defeated by the Constitution. The cases that together illustrate both points are the little noted Kinsella v. Krueger64 and the still vital Reid v. Covert65 and its companion Kinsella v. United States ex rel. Singleton.66 All three cases dealt with constitutional claims for a jury trial by civilian dependents in procedures set up under Status of Forces Agreements (SOFAs). For Professor Stephan the trilogy, among other things, illustrates the primacy or ascendancy of domestic constitutional rights. In an interesting conjecture, he views them as possibly reflecting a response to the proposed Bricker Amendment’s attempt to rein in treaty making by making international agreements subordinate to constitutional rights.67 The trilogy also fits the larger story, at least in part. Taken together, the cases illustrate the Court’s sudden shift from facilitating power to enforcing rights. Krueger exemplified the Court’s pattern as the postwar period began. There the Justices upheld application of the Uniform Code of Military Justice and various SOFAs against the demand for a jury trial in just the way one would expect from a Court that placed facilitating the nation’s role as a superpower above rights claims.68 That famously changed in Reid, in which the Sixth Amendment won out in capital cases, and Singleton, in which it won out in general.69 In this way, the power story quickly gave way to the rights story. Yet the point remains that the shift occurred not because of, but despite, international agreements. Treaties of course might have augmented constitutional rights as the period continued. Yet this did not happen. This is not to say that treaties never served as the basis for a successful assertion of rights. The occasions, however, were few, and the assertions themselves were hardly in line with the ringing commitments of international human rights treaties. In Clark v. Allen,70 the Court held in favor of the claimant’s inheritance rights under a treaty, thereby invalidating state law, although it read the treaty narrowly so as not to apply to personalty. Construing a different treaty more than a decade later, Kolovrat v. Oregon71 extended its protection of inheritance rights to personalty, although the decision was driven far more by the Court’s umbrage at state foreign policymaking than by any concern about rights per se. Although beyond his “remit,” Professor Stephan is entirely correct in observing that the Court shortly thereafter would base its federalism concerns not on treaties at all, but on the dormant foreign affairs power notion put forth in Zschernig v. Miller.72 The grand alliance, then, was never signed, ratified, nor otherwise concluded. Even at the height of the postwar Court’s rights jurisprudence, Article 19 of the International Covenant on Civil and Political Rights (ICCPR)73 would not augment the First 64 65 66 67 68 69 70 71 72 73

351 U.S. 470 (1956). 354 U.S. 1 (1957). 361 U.S. 234 (1960). See Chapter 10, pp. 344–46. 351 U.S. 470 (1956). Reid, 354 U.S. 1; Singleton, 361 U.S. 234.. 331 U.S. 503 (1947). 366 U.S. 187 (1961). 389 U.S. 429 (1968). “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” ICCPR, supra note 31, Article 19, Para. 2.

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Amendment; nor Article 7,74 the Eighth Amendment; nor Article 2,75 the Equal Protection Clause. Explaining a negative, especially in history, is problematic. That said, several previously noted reasons likely played a role. Given that equality served as its core, international human rights law posed an additional threat to defenders of the status quo at home. Likewise, international law’s embrace of social and economic rights along with civil and political liberties made it a target for Cold War opponents of foreign “socialist” ideas. American exceptionalism also played a role, in particular the feeling that the Constitution already protected those rights that matter. Some or all of these reasons appeared in the Bricker Amendment controversy in which, as previously noted, Congress came close to approving a constitutional amendment that would have severely restricted the domestic effects of treaties.76 For all this, the most important factor in the Court’s failure to fold international law into its rights jurisprudence is itself doctrinal. As a matter of direct interpretation, a human rights treaty needs to be self-executing for a U.S. court truly to engage it. A treaty with vague, general language, such as the UN Charter, is not judicially enforceable under the doctrine of non-self-executing treaties.77 That arguably is not a problem with a mainstream human rights treaty such as the ICCPR. Article 7’s prohibition on torture and cruel, inhuman, and degrading treatment reads very closely to the Eighth Amendment, which to date no domestic court has hesitated to construe on the ground that it is too vague to permit judicial enforcement.78 Rather, the Court for much of this period had few relevant treaties to construe in the first place. By stark contrast, commercial agreements grew to be fast-tracked in several senses. Together these policies were designed to ensure that the courts had much to deal with in the commercial realm, but virtually nothing when it came to human rights. Nothing in the preceding explanation forecloses the Court’s reliance on human rights treaties. To the contrary, should the political branches take a more welcoming view of human rights instruments the judiciary would likely follow: first because the material would now be available, and second because the Justices might (as they should) view a human rights treaty ratified without RUDs as democratic approval of the type Professor Stephan sees as crucial in the many instances in which the postwar Court did implement treaties. As it is, some rights-protecting treaties slipped through nonetheless. The Geneva Conventions were ratified without the sort of RUDs that ordinarily preclude judicial enforcement of human rights treaties, in no small part because at the time no one would have thought to attach a non-self-executing declaration. The Court’s treatment of these particular treaties, if anything, suggests that Professor Stephan does not go far enough. 74

75

76 77 78

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” ICCPR, supra note 31, art. 7. “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” ICCPR, supra note 31, art. 2, para. 1. See Tananbaum, supra note 24. See Sei Fujii v. State, 242 P.2d 617, 619–22 (Cal. 1952); see also Carlos M. Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 713–15 (1995). Compare ICCPR, supra note 31, art. 7 (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”) with U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).


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While the Court clearly prefers to have one of the political branches authorize domestic implementation of a treaty, it is not above inferring such authorization on the basis of very thin evidence – as Quirin, Yamashita, and later Hamdan suggest.79 Even so, these types of “stealth” human rights treaties during this period generated few cases. Based on the framework set forth here, this meant that the possibility of implementing a rights-protecting treaty would come after the last chapter of the postwar story had begun. By this time, the Court’s rights-protecting agenda had met with a backlash that began under President Nixon and gained ascendancy during the Reagan era. In this changing climate, the allure of international law as a source for Justices interested in rights protection would be offset by distaste on the part of those who were not. A preview of things to come took place with Breard v. Greene.80 There the Court addressed the Vienna Convention on Consular Relations, an otherwise unremarkable agreement that included a provision according arrested foreigners a right to be notified that they could have access to the consulate of their home nation.81 A not surprisingly divided Court denied the treaty claim of a capital defendant. The battle was not completely joined, because the Court relied on two standard doctrines to avoid a consideration of the Convention itself: constitutional superiority over treaties domestically and the later-in-time rule as a tiebreaker between treaties and statutes. It would have to wait until the new century before a Court typically divided on international law would fully revisit the Vienna Convention.82 A direct contest over the Geneva Conventions, perhaps, still lies ahead.

II. Customary International Law The Court’s use of customary international law also looks mixed. Professor Dodge seeks to bring order out of confusion by arguing that the story is one of continuity and change. He notes that the postwar Justices continued their predecessors’ historic reliance on international custom in the law of war and state boundary disputes. Yet he also concedes that they in part abandoned this reliance in the landmark case of Banco Nacional de Cuba v. Sabbatino.83 In an elegant twist, this change sets a basis for return to continuity. First the lower courts, starting in Filartiga v. Pena-Irala,84 and finally the Supreme Court in Sosa v. Alvarez Machain,85 again embrace customary international law, this time in its postwar and post-positivistic incarnation protecting modern international human rights. 79 80 81

82 83 84 85

See Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 523 U.S. 371 (1998). Article 36 states: [I]f he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). 376 U.S. 398 (1964). 630 F.2d 876 (2d Cir. 1980). 542 U.S. 692 (2004).

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Unclear in this thoughtful account is exactly why the Court at certain times and in certain areas maintains fidelity to traditional commitments and, with regard to others, appears to lose faith. Once again, a perspective that looks beyond the law makes better sense of what is going on within its confines. As Professor Dodge shows, customary international law remained surprisingly strong in certain lines of cases, notwithstanding Erie Railroad Co. v. Tompkins86 and the general drift toward a more formal, direct, and democratic positivism it reflected. As with any entrenched doctrine, judicial reliance on international custom would tend to survive past the circumstances that established it, in this case its usefulness to a new, weak republic beset by the superpowers of the day.87 Ultimately, however, it could endure only so long as it somehow remained useful, or at least did not present an obstacle, to a very different United States trying to project power overseas. This view would account for the case law concerning interstate disputes. Certainly, few of the Court’s traditions have been entrenched longer than its application of customary law principles to such disputes.88 Professor Dodge shows that such reliance was alive and well right through the somewhat counterintuitive result of New Jersey receiving a chunk of Ellis Island in New Jersey v. New York.89 Moreover, in a deft use of evidence, his chapter notes how Justice Louis Brandeis expressly announced that the Court would continue to apply customary law in interstate disputes, whatever Erie might have implied to the contrary.90 This practice remains strong, perhaps because there is no reason for it not to be. Interstate disputes, much like the rest of the Court’s original docket, require the Court’s attention more to resolve sui generis disputes than to generate farreaching doctrine. That is one reason why, in modern practice, they usually get farmed out to Special Masters, retired judges whose conclusions the Court generally adopts.91 Customary international law serves a similar function. It provides conventions to resolve a class of disputes outside of which those rules have few implications. Put another way, international custom remains useful to the Justices precisely where the point is not having the right rule, but some rule. The customary laws of war have broader implications, and to that extent considerations bearing on their use cashed out differently. Professor Dodge shows that the Court emerged from World War II with its historic commitment to humanitarian law92 also still entrenched. Any other result would have been surprising, given the historic role the United States had played in fostering the laws of war since the Lieber Code,93 and indeed since George Washington’s command of the Continental Army.94 The Court famously 86 87 88 89 90 91 92

93 94

304 U.S. 64 (1938). See Chapter 1, pp. 45–46; Flaherty, supra note 2, at 2112–51. See, e.g., Rhode Island v. Massachusetts, 37 U.S. 657 (1838). 523 U.S. 767 (1998). See Chapter 11, p. 357; Chapter 7, pp. 247–48. Discussion with Bryon R. White, Associate Justice, U.S. Supreme Court (Fall, 1990). See, e.g., Wyoming v. Oklahoma, 502 U.S. 437 (1992); Nebraska v. Wyoming, 515 U.S. 1 (1995). After World War II, the label “laws of war” has generally given way to the term “international humanitarian law applicable in armed conflicts.” See Adam Roberts & Richard Guelff, Introduction, Documents on the Laws of War (3d ed. 2004). Instructions for the Government of the Armies of the United States in the Field, General Order No. 100 (Apr. 24, 1863) (Rpt. Washington, D.C.: U.S. War Dept., 1898). See David Hackett Fischer, Washington’s Crossing 180, 377 (2004).


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confirmed this tradition in both Ex parte Quirin95 and In re Yamashita.96 It perhaps did not hurt that in both instances the Justices could have their laws of war and their war criminals too, insofar as their substantive interpretations of the laws of war upheld enemy convictions and capital sentences. Nor did it hurt that the Court had a basis, however slight, to hold that Congress had incorporated the laws of war in these instances and that U.S. territorial sovereignty in these cases eased the application of the judiciary’s statutory habeas corpus authority. The Court dealt with the laws of war “quite differently”97 in Johnson v. Eisentrager. There the Court avoided a direct application of humanitarian law on the ground that it lacked jurisdiction to entertain a habeas petition filed by prisoners held outside U.S. sovereign territory.98 What discussion it did devote to the laws of war was not only dicta but also substantively rejected the contention that international law provided a basis for individual judicial remedies.99 Pure doctrinal history might account for this rejection, as the Court did, on the ground that habeas did not reach a military facility outside the United States. Yet the timing of the decision suggests a different explanation. By 1950 it had become clear that the extension of American military power around the globe, and with it possible conflict, would be a permanent feature of the postwar landscape. This reality exponentially raised the stakes of applying humanitarian law in federal courts. At the same time, 1950 predated both the domestic rights revolution that would characterize the next generation as well as the parallel human rights revolution in international law that Justice Jackson’s participation in Nuremberg helped usher in.100 On this larger view, Eisentrager could not have come at a worse, nor more anomalous, time for the ongoing use of international custom in a fashion that would protect fundamental rights. Little more than a decade later, all this had changed. Domestically, judicial protection of fundamental rights had become the hallmark of the postwar Court. An array of landmark cases completed the process of incorporating the Bill of Rights against the States;101 of fulfilling the promise of the Equal Protection Clause;102 and of expanding due process.103 With regard to this last source, Griswold and its progeny relied on a form of domestic custom as a principal means of protecting unenumerated rights.104 In structural terms, the Court also asserted its checking function on expanded government power, even in matters affecting the conduct of war.105 It is in this context that Sabbatino, perhaps the most important customary international law case of the period, should be understood. Whatever else might be said about the decision, both the majority opinion and Justice Byron White’s dissent reflect a fundamental agreement that the Court properly reserved an independent role in applying rules derived from international custom. Professor Dodge correctly notes that Justice John Marshall Harlan II’s majority opinion located the source for this authority not in international 95 96 97 98 99 100 101 102 103 104 105

317 U.S. 1 (1942). 327 U.S. 1 (1946). Chapter 11, p. 355. Johnson v. Eisentrager, 339 U.S. 763, 777–81 (1950). Id. at 789, n.14. Chapter 11, p. 357. See Duncan v. Louisiana, 391 U.S. 145 (1968). Brown v. Bd. of Education, 347 U.S. 483 (1954); Cooper v. Aaron, 358 U.S. 1 (1958). Rochin v. California, 342 U.S. 165 (1952). Griswold v. Connecticut, 381 U.S. 479 (1965) (Harlan, J., concurring). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

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law, but in domestic separation of powers.106 First National City Bank’s subsequent failure to adopt the “Bernstein” exception107 made clear that the Court would retain this authority, notwithstanding contrary positions by the Executive.108 Nothing in Sabbatino precluded the judiciary’s assertion of this authority in the service of fundamental rights. Justice White wrote his encyclopedic, lone dissent not because he believed in deference to the Executive, but rather because he thought that customary international law had developed an exception to the act of state doctrine and that no policy reasons precluded applying that exception.109 This understanding requires diverging from Professor Dodge’s otherwise flawless interpretation. On his view, the Sabbatino Court refrained from applying customary international law for two reasons.110 The most important concerned domestic separation of powers principles.111 The Court, in other words, would not apply customary international law directly when doing so would interfere with foreign relations. In addition, Harlan contended that international law did not compel the act of state doctrine in general, nor the international law exception embraced in Justice White’s dissent.112 International law with regard to the act of state doctrine and expropriation, in short, was too unsettled to derive a rule. A better reading is that the Court applied international custom nonetheless. The Sabbatino majority in no way repudiated judicial reliance on customary international law, but instead made clear that the judiciary retains the authority to apply rules derived from custom through that part of its Article III judicial lawmaking power that survived Erie. First, and again most importantly, the Court did reject the idea that it applies international custom directly. While this repudiation may depart from the dominant Founding understanding,113 it is far from a rejection of the application of international law through indirect means, in particular, through federal common law. In this regard, Justice Harlan simply denied that Erie’s restriction of judicial lawmaking power “extended to legal problems affecting international relations.”114 Moreover, nowhere else in the opinion does Justice Harlan clearly declare that direct application of international custom remains an alternative means for applying customary international law strictures. Yet where would the judge-made rules affecting international relations come from? This question raises the second issue, pertaining to the role of international law. Harlan in Sabbatino does not suggest, and he certainly does not attempt, to fashion a rule based solely on the Court’s sense of how “best to order [the nation’s] relationships with other members of the international community,” without reference to the rules that the international community has sought to establish. Rather, in considering the “act of state” doctrine, the majority looks exclusively to a rule that is primarily rooted in customary international law. The Court does contend that the general practice concerning the act of state doctrine has enough exceptions that application of the doctrine is not “compelled.” 106 107 108 109 110 111 112 113 114

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); Chapter 11, pp. 360–61. See Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375 (2d Cir. 1954) (deferring to a State Department letter waiving the act of state doctrine). First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972). Sabbatino, 376 U.S. at 439 (White, J., dissenting). Chapter 11, pp. 360–62. Sabbatino, 376 U.S. at 422. Id. at 421. See Chapter 1, pp. 10–11; Flaherty, supra note 2, at 2112–51. Sabbatino, 376 U.S. at 425.


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The Court is more dubious still concerning Justice White’s point that there would be a rights exception, in this instance property rights, were the act of state doctrine to apply. More importantly, however, Harlan makes clear that as a general matter, international custom will remain the primary source for judge-made rules concerning international relations and that its applicability will in large part depend on the Justices’ perceptions of the depth and breadth of the relevant state practice. One passage bears on both main points: that is, first, on the basis for the judiciary to apply rules that bear on foreign relations, and second and more directly, the source for such rules. Harlan states: It should be apparent that the greater degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.115

First, this passage should not be understood to announce the Court’s ability to apply customary international law directly. Instead, it is better read in the context of Harlan’s previous discussion concerning the separation of powers basis for the judiciary’s ongoing common lawmaking power in the foreign affairs area post-Erie. With that basis established, the passage’s reference to the “application” of international law speaks to the second point, namely, the source for judge-made rules touching on foreign relations. That source must be those rules that have passed muster under the rules of recognition of international custom – above all, general practice as reflected in a greater degree of consensus. Harlan also reiterates a concern that any rule the Court fashions must as far as possible not violate international law. In this sense, Sabbatino represents a general endorsement of customary international law. This surviving aspect of federal common law will track international custom where it is sufficiently well established. Justice White’s dissent if anything sent this message even more strongly. The dissent agreed that the Court has the power to derive federal common law based on international custom. Here White went beyond the majority in suggesting that the Court should derive rules consistent with customary international law.116 In this instance, he dissented for the simple reason that his analysis of customary international law convinced him that the act of state doctrine did not apply to what was essentially an international taking as a matter of customary international law.117 In viewing international custom as a source for fundamental rights, rather than as a means by which governments accommodated one another, White’s view on the merits heralded what was to come. What came in time was the Court’s application of modern customary international human rights law, not directly, but through the Alien Tort Statute (ATS).118 Here Professor Dodge wisely expands his focus beyond the Supreme Court to recount how the lower federal courts turned an obscure eighteenth-century provision into the principal 115 116

117 118

Id. at 428. Id. at 453 (White, J., dissenting) (“Fundamental fairness to litigants as well as the interest in the stability of relationships and preservation of reasonable expectations call for their [principles of international law] application whenever international law is controlling in a case or controversy.”). Id. at 457–61 (White, J., dissenting). 18 U.S.C. § 1350 (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”).

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basis for modern international human rights litigation in the United States.119 The case law that produced this achievement drew on the rapid postwar consolidation of international human rights law, including the recognition of torture, extrajudicial killing, and genocide, in certain cases even by nonstate actors.120 At the same time, the courts’ development of modern ATS litigation clearly built on foundations established in earlier domestic civil rights suits. Nor did the development of international human rights litigation, at least initially, run up against any powerful constituencies that might have stood in its way. To the contrary, the initial targets of the major ATS suits tended to be officials of minor or pariah governments.121 The U.S. Executive generally supported rather than opposed ATS suits, and Congress indirectly endorsed ATS litigation with the passage of the Torture Victim Protection Act,122 which provided an express cause of action for torture and extrajudicial killing. All this took place, moreover, in spite of significant technical hurdles, many of which more conservative judges, such as Robert Bork, pointed out. Not least among these were the following: the question whether international custom as incorporated could evolve; whether constitutional jurisdiction rested on federal question, diversity, or some other foundation; and the lack of an express text creating a cause of action. Resolution of these questions would await the new century.123

III. International Law as an Interpretive Guide Interpretive reliance on international law presents perhaps the greatest challenge in the search for coherence in the Court’s case law. Professor Waters takes up the task heroically, unpacking complex developments on a range of subjects.124 The Charming Betsy canon generally waned. Congress returned foreign sovereign immunity doctrine to 119 120 121 122 123

124

For the history of the ATS, see William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19 Hastings Int’l & Comp. L. Rev. 221 (1996). See Chapter 11, p. 372. See id., pp. 366–69, 372. Torture Victim Protection Act, Pub. L. No. 102–256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note). The Supreme Court’s later ratification of ATS litigation in Sosa v. Alvarez-Machain would not come as a stunning surprise, yet it was bold nonetheless. In Sosa Justice Souter overcame one of the obvious problems with ATS suits, which was the statute’s ostensible failure to supply a cause of action. With great historical sophistication the majority held that the First Congress, in passing what looks to be purely a jurisdictional statute, did so with an expectation that the federal courts would use their common lawmaking powers to supply a cause of action. 542 U.S. 692, 695 (2004). But the Sosa judgment overcame a substantial backlash. In what Curtis Bradley termed the “second wave” of ATS suits, see Curtis A. Bradley, Customary International Law and Private Rights of Action, 1 Chi. J. Int’l. L. 421, 421 (2000), plaintiffs began using the ATS to sue corporate defendants. See, e.g., Doe I v. Unocal, 963 F. Supp. 2d 880 (C.D. Cal. 1997). This triggered opposition from corporate America. Likewise, the Executive, now under George W. Bush, for the first time sought to eradicate the ATS as a human rights vehicle. See Brief for the United States as Respondent Supporting Petitioner, Sosa v. Alvarez-Machain, 542 U.S. 692 (No. 03-339), 2004 WL 182581. More generally, evolving opposition to judicially “activist” domestic rights enforcement generally cut against the ATS. Sosa partially bowed to these concerns by ratifying traditional ATS case law against government actors for core human rights violations, but setting out a narrow standard that would make expansion of the statute extremely difficult, especially against corporate actors. See Sosa, 542 U.S. at 732–37. Power – in this instance government deference to corporate power – would put limits on the ATS, but it would not be enough to emasculate either the ATS or customary international law in the service of fundamental rights. See Chapter 12.


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the judiciary. And in constitutional law, international legal sources faded from the scene, but then rebounded dramatically as the millennium approached. An overall pattern appears elusive at best. International law as an interpretive guide may simply be one of those areas subject to so many competing factors and covering so many disparate subjects that a good pattern is hard to find. Given Professor Waters’ effort, perhaps we should not give up too quickly. Even in this area, the various cases make up a bigger picture that centers on U.S. ascendancy as a superpower that is nonetheless checked by a rights revolution, both domestic and international. This framework fits most obviously in constitutional law. As the period began, international law stood as an obstacle to the nation’s assertion of its global status. By the end of the era, the consolidation of international human rights law had become an obvious source for Justices inclined to bolster parallel constitutional rights. What followed were increasingly prominent references to international and comparative law in several landmark Eighth Amendment and due process cases. The framework also helps account for developments outside the constitutional realm. When the Charming Betsy canon proved to be an obstacle for the new superpower’s assertion of global economic leadership, it was the Charming Betsy, not U.S. authority, that gave way. This pattern, albeit discernible, was by no means uniform or without exceptions, which was a general feature of the postwar period.125 As the “Age of Rights” progressed, both internationally and domestically, the Charming Betsy doctrine began to make a comeback, at least in the lower courts.126 With her treatment of constitutional law, Professor Waters saves the best for last. But the topic deserves to lead off on several counts. Constitutional issues tend to have higher stakes than any others. The use of international law in domestic constitutional interpretation remains controversial in the United States.127 And as it happens, the topic illustrates the interplay of U.S. global power, fundamental rights, and international law. Professor Waters captures the dynamic by highlighting a striking contradiction that could only have occurred early, but not too early, in the period. As she argues, a comparison of the Court’s decisions in Perez v. Brownell128 and Trop v. Dulles129 is instructive. The two cases addressed “different provisions of the Nationality Act of 1940.”130 In Perez, application of international law sovereignty principles “led the Court to uphold denaturalization [for voting in a foreign election] as a necessary and proper exercise of Congress’s sovereign power to regulate foreign affairs.”131 By contrast, in Trop “application of international law led the Court to reject denaturalization [for desertion of military service] as a violation of the Eighth Amendment.”132 One part of this “paradox,” as Justice William Brennan called it, had to give way. With somewhat surprising swiftness, the Court overruled Perez133 and continued to employ international law to bolster its 125 126 127 128 129 130 131 132 133

See generally Kal Raustiala, Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law (2009). See Chapter 12, pp. 394–95. See Mark Tushnet, International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity, Part V.C, pp. 507–17. 356 U.S. 44 (1958). 356 U.S. 86 (1958). See Chapter 12, p. 411. See Chapter 12, p. 411. Id. Afroyim v. Rusk, 378 U.S. 253 (1967).

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rights jurisprudence, although hardly with the frequency that other constitutional courts around the world have done so.134 The “Perez v. Trop” episode suggests that constitutional interpretation also fits the more general postwar pattern. The Court would invoke international law, especially in its more traditional forms, in aid of U.S. authority given its central place on the world stage. When, however, this practice ran up against the postwar Court’s growing commitment to fundamental rights and fairness, the Court would invoke parallel ideas in developing human rights law as a check. As previous chapters have shown, international law had long been a source of governmental authority in areas where the Constitution itself did not provide explicit authority. Under the law of nations, sovereigns were presumed to have certain powers necessary to conduct affairs within the international law framework. The Supreme Court internalized this assumption in relying on sovereignty as a basis – not for rights, which properly conceived, only persons or groups enjoy135 – but for federal powers, especially those that touched on foreign affairs. Professors David Sloss and Thomas Lee show the extent to which the nineteenth-century Court drew on the sovereign powers idea in a range of areas.136 As Professor Edward Purcell indicates, this approach declined in the early twentieth century, yet remained dominant even after World War II in the important area of immigration law.137 In domestic law, Bruce Ackerman has argued that the New Deal’s commitment to a modern social welfare state required a revolutionary expansion of federal power, mainly via the Commerce Clause; this power in turn required checking through the Court’s expansion of individual rights.138 The nation’s emergence on the international stage required a similar expansion of governmental power. To an extent this too relied on an expansion of the foreign Commerce Clause, among other sources.139 Yet as Professor Waters also shows, it relied as well on more hoary sovereignty notions, at least at the outset. Perez represented the high (or low) point, but it was not alone. Harisiades v. Shaughnessy140 also drew from the mystical font of sovereignty to uphold the deportation of lawful resident aliens for membership in the Communist Party. The cases together represent late articulations of what Curtis Bradley has termed “foreign affairs exceptionalism,”141 the idea that the ordinary rules and limits of constitutional interpretation do not apply with regard to foreign affairs powers. Professor Waters makes clear that the Court could unabashedly extend this tradition, both expressly and by disinterring the landmarks of the genre, including Fong Yue Ting142 and Curtiss-Wright.143 Interesting 134 135

136 137 138 139

140 141 142 143

See Sloss, Role of Treaties, supra note 56 (especially chapters on South Africa and India). As Charles L. Black would point out in lectures, the idea of “rights” is properly associated with persons, not powerful entities such as states. Cf. Charles L. Black, Jr., A New Birth of Freedom: Human Rights Named and Unnamed 41–85 (1997). Chapter 4, pp. 152–55. Chapter 9, pp. 300–03. 1 Bruce A. Ackerman, We The People: Foundations (1993). See, e.g., Buttfield v. Stranahan, 192 U.S. 470 (1904) (upholding the Tea Inspection Act); Champion v. Ames, 188 U.S. 321, 373 (1903) (asserting that Congress’s authority under the foreign Commerce Clause is broader than under its interstate counterpart); Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1978) (also asserting the greater comparative scope of the foreign Commerce Clause). 342 U.S. 580 (1952). Curtis A. Bradley, A New American Foreign Affairs Law?, 70 U. Colo. L. Rev. 1089, 1096 (1999). Fong Yue Ting v, United States, 149 U.S. 698 (1893). United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).


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in this regard is that this approach remained sufficiently strong to resist replacement even by the all-powerful Commerce Clause. More importantly, the sovereign powers approach at least initially survived as part of the larger story of the Court’s deployment of internationally inflected constitutional doctrines, internationally inflected statutory doctrines, and domestic constitutional doctrines to facilitate the nation’s new role in a Cold War among superpowers. Starting in the late 1980s, the final chapter in the narrative of this period would witness the invocation of international law more often on behalf of rights than of power. Professor Waters nonetheless usefully notes that the seeds of this combination were planted even earlier. Her treatment of Afroyim is convincing in its argument that the Court repudiated the sovereign powers approach and “privileged the rights of individuals over the power of the state.”144 In this regard, the unlikely figure of Justice White emerges even more clearly as a human rights internationalist. His dissent in Sabbatino, arguing that custom had established an exception to the act of state doctrine, indicated that he was prepared to invoke international law in the defense of rights – at least property rights – in the federal common lawmaking context.145 In the interpretive context, White served as a bridge to the current case law with nods to international practice and opinion with regard to aspects of the death penalty in Coker v. Georgia146 and Enmund v. Florida.147 The rapidly developing international human rights sources on which White relied had only grown stronger as the end of the century neared. At this point, what may be surprising is how little, rather than how much, the Court would embrace the practice. Professor Waters does identify certain prelude cases, again in the death penalty context, such as Thompson v. Oklahoma148 and Stanford v. Kentucky.149 Looking backward, one reason for the dearth of such cases may be the lag time needed for jurists unfamiliar with the international human rights movement to realize its full implications. Looking ahead, another reason for resistance to the practice would be a partial backlash against fundamental rights jurisprudence in general, especially where its sources went beyond narrow, ostensibly democratically endorsed constitutional text. Whatever the reasons, the century would nonetheless close with the Court primed at the very least to continue the invocation of international rights standards. The Court’s use of international law in the non-constitutional setting presents a somewhat greater challenge. Professor Waters meets this challenge with a close examination of an array of cases in different categories, including statutes in traditional maritime areas, non-maritime statutes, immigration, treaty conflicts, and foreign sovereign immunity. In most of these areas, the ostensibly entrenched Charming Betsy150 canon should have applied pure and simple, but Professor Waters shows that there was nothing simple about the Court’s interpretive use of international law in this period. While trends sometimes emerge within these areas, unifying patterns are hardly self-evident. So complex are the Court’s machinations, one is tempted to admit defeat and say that the cases are simply too compartmentalized, deal with areas that do not consistently trigger predictable ideological passion, and are too idiosyncratic to hazard any grand theory. This may be 144 145 146 147 148 149 150

See Chapter 12, p. 412. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 457–61 (1964) (White, J., dissenting). 433 U.S. 584 (1977). 458 U.S. 782 (1982). 487 U.S. 815 (1988). 491 U.S. 361 (1989). Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804).

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doubly so insofar as international law by this period appears to have long since lost the centrality it had at the nation’s founding. One former Supreme Court clerk captured this last point in a title to an American Society of International Law (ASIL) talk summarizing the Court’s reaction when confronted with international law claims in the late twentieth century: “Treaty? What Treaty?”151 But the cases may yet fit the bigger picture and in fact may clarify certain aspects of the framework. As an emerging superpower, the United States required the means for extending its authority in novel ways. That expansion, however, would have to be reconciled with the Court’s own commitment to fundamental rights, itself paralleled by the birth and rapid development of international human rights. Initially, traditional international law doctrines persisted. In the constitutional realm these doctrines tended to advance U.S. power, although here the results are not so clear. Conversely, during more or less the century’s last decade, reaction to the Court’s domestic rights jurisprudence led various Justices to turn at last to international human rights law with comparative frequency, a move that in turn led to self-conscious resistance by the wing of the Court skeptical of rights jurisprudence in general. Not perfectly, but with some coherence, Professor Waters’ non-constitutional cases reflect these stages. The formal pull of traditional doctrine appears strongest in maritime law, itself a traditional home for international rules. Starting with Lauritzen152 and followed several years later by Romero,153 the Court kept the Jones Act within U.S. territorial boundaries, relying heavily on customary international law and the comity concerns it implicated. McCulloch154 too invoked the Charming Betsy canon to restrict extraterritorial application of the National Labor Relations Act (NLRA), only here it did so even more strongly, foregoing the case-by-case approach of Lauritzen in favor of a clear statement requirement. None of these results should be especially surprising. Application of international law clearly had strong purchase in an international setting such as maritime law. Moreover, neither the Jones Act nor the NLRA furthered U.S. international trade interests in the way that the antitrust provisions upheld in Alcoa did.155 Nor, as the period wore on, is it surprising that concern for international law gave way to domestic doctrines in cases such as Hellenic Lines.156 Arguably, this part of the process echoes the displacement of sovereign powers jurisprudence that Professor Waters describes.157 In complex fashion, the Court’s approach to non-maritime statutes fits the larger patterns as well. At the outset of the period, the Court in Foley158 applied a strong presumption against extraterritoriality with regard to labor law, and it did so with no mention of the Charming Betsy canon or international law. First, it may be worth considering whether that presumption is itself entirely domestic or has roots in international comity. Whatever its provenance, U.S. labor law again does not implicate the sort of superpower concerns, even economic ones, that require extension of U.S. authority abroad. Add to this case law in which the judiciary moved beyond traditional notions of territory in aid of U.S. foreign economic interests. This happened immediately before the period 151 152 153 154 155 156 157 158

Paul Wolfson, Treaty? What Treaty?, 94 Am. Soc’y Int’l L. Proc. 142 (2000). Lauritzen v. Larsen, 348 U.S. 571 (1953). Romero v. International Terminal Operating Co., 358 U.S. 354 (1958). McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963). See infra p. 439. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970). See Chapter 12, pp. 411–12. Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949).


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that Professor Waters considers, and not by the Supreme Court itself. Unable to achieve a quorum, the Court assigned what would prove a landmark case in this area to the Second Circuit. In United States v. Alcoa, the Second Circuit applied the Sherman Antitrust Act to wholly international conduct, and it did so with scant discussion of international law or a presumption against extraterritoriality.159 The decision would become widely known for facilitating federal regulatory authority abroad at a time when the United States needed such authority to project U.S. economic power internationally.160 Hartford Fire161 would confirm such authority as the period closed. Yet as Professor Waters indicates, Justice Antonin Scalia in dissent would voice misgivings about the extension of government regulation, first by calling for application of the territoriality presumption and next by citing the Charming Betsy canon and international law to support a “reasonableness” test for any extraterritorial application of the Sherman Act.162 In this way Justice Scalia, along with the ostensibly “conservative” wing of the Court, opened himself to an obvious charge of inconsistency. International law triggers no objections when employed to rein in economic regulation. When invoked in the service of fundamental rights, however, international law will instead trigger contempt and mockery.163 As expected, international law would play a greater – although not always successful – role at about the time the last decade of the period got underway. Here the landmark case is INS v. Cardoza-Fonseca.164 The decision would have been the perfect wedding of the Charming Betsy canon with international human rights law, but for its failure to actually cite the Charming Betsy. Otherwise, the majority resolved a disputed provision of the Refugee Act165 to be consistent with two central human rights treaties, the 1968 Protocol and the 1951 Refugee Convention. It also relied on international human rights sources, here the interpretation of the UN High Commissioner for Refugees. Perhaps most importantly, the Court looked to international law notwithstanding the newly minted doctrine of Chevron deference to administrative agency interpretations of statutes – in this instance the cramped construction of the INS that applicants for political asylum had to prove that persecution was “more likely than not.”166 Technically one might quibble to note that the Court deemed that congressional intent to incorporate the Protocol was so clear that no interpretive canon was needed. Cardoza-Fonseca nonetheless represents a high point for the use of human rights law in statutory interpretation. But what was a high point for some Justices was just the opposite for others. The early 1990s trilogy of Aramco,167 Smith,168 and especially Sale169 showed that majorities could also resist the expansion of rights with international facets, whether domestic rights sought to be invoked abroad or rights that themselves had an international pedigree. Aramco, 159 160 161 162 163

164 165 166 167 168 169

148 F.2d 416 (2d Cir. 1945). For further discussion of Alcoa, see Chapter 8, pp. 265–67. See Raustiala, supra note 125, at 102–04, 118–19. Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993). See id. at 798 (Scalia, J., dissenting). See, e.g., Roper v. Simmons, 543 U.S. 551, 607, 622 (Scalia, J., dissenting) (“Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.”); see also Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 137 (2003) (arguing that reliance on international and comparative law materials in constitutional interpretation is illegitimate). 480 U.S. 421 U.S. (1987). 18 U.S.C. § 1101(a)(42). See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). Smith v. United States, 507 U.S. 197 (1993). Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993).

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like Foley, employed a presumption against extraterritoriality, this time with regard to Title VII. It did so, however, with a full-fledged clear statement rule and a reference to comity and judicial deference to political branch foreign affairs determinations. Applying the presumption with regard to a nontrade statute may be understood as merely a continuation of Foley. The heightened clear statement requirement in Aramco, together with the use of the presumption against extraterritoriality to restrict a statutory right of nondiscrimination, may be taken as signs of a reaction against the Court’s previous rights jurisprudence. While Smith represents a slight step in the other direction,170 Sale tends to confirm this view. There the Court read the 1980 Refugee Act very restrictively. Although it did so without resort to a clear statement rule, it likewise overlooked substantial international human rights law that should have pushed it to a broader application of the statute. INS v. Aguirre-Aguirre171 represented an even more striking defeat for the cause of international human-rights-oriented interpretation. There the Court appeared to track Cardoza-Fonseca by again noting Congress’s intent to conform U.S. law with international refugee law and by acknowledging the views of the United Nations High Commissioner for Refugees.172 These references worked only to disparage international law, however, because the Court held them to be trumped by Chevron deference.173 AguirreAguirre did not scuttle the Charming Betsy for human rights, especially given the Court’s increasing flirtation with international law in constitutional interpretation. It was, however, of a piece with victories by the wing of the late Rehnquist Court that tended to embrace executive authority and reject fundamental rights, especially when augmented by international sources. Potential conflicts between federal statutes and treaties ratified by the United States ring further changes on a similar theme. Here the relevant case law arises in the early 1980s, before Cardoza-Fonseca, thus anticipating later battles over international custom. The Court began with a decision that moved in a more internationalist direction, privileging international agreements over possibly incompatible statutes. In Weinberger v. Rossi,174 the majority concluded that an executive agreement with the Philippines fit the statutory definition of “treaty.” Professor Waters notes that this interpretation of the statutory term “treaty” to include international agreements, whether or not adopted with the advice and consent of the Senate, comported with both international usage and domestic practice (none of which prevented a scholarly storm over the issue a decade later).175 Of more immediate significance, the Court expressly relied on the Charming Betsy, although its reasons did not necessarily make for a lasting alliance. On the one hand, the Court cited the usual need to comport with international law. On the other, it also pointed to the 170 171 172 173 174 175

Smith held that the Federal Tort Claims Act did not permit a civil action for wrongful death against the United States when the death occurred in Antarctica. Smith, 507 U.S., at 200–02. 526 U.S. 415 (1999). Id. at 426–28. Id. at 423–25. 456 U.S. 25 (1982). Ackerman & Golove, supra note 18. But see Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221 (1995); NAFTA, NEPA, and the Separation of Powers: Hearings Before the Senate Committee on Environment and Public Works, 103rd Cong. 2 (July 22, 1993) (statement of Lawrence H. Tribe, Carl M. Loeb Professor, Harvard Law School) (arguing that NAFTA should have been submitted as a treaty to comport with constitutional text and structure).


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ostensible need for the judiciary to tread softly in foreign affairs, especially in matters in which the political branches have taken charge, in this instance through an international agreement. Yet in treaties as in custom, the introduction of international law would not always lead to success, especially as the century closed. Professor Waters puts it well in arguing that “[a] decade and a half later the Court’s decision in Breard v. Greene called into question its commitment to the Charming Betsy canon as a device to resolve conflicts between treaties and federal statutes.”176 Breard involved the notorious conflict between the consular notification provisions of the Vienna Convention on Consular Relations and the somewhat chillingly titled Antiterrorism and Effective Death Penalty Act (AEDPA). Here the statute trumped the treaty, mainly based on an application of the “later-in-time” rule as between treaties and statutes, an application that trumped any meaningful consideration of the Charming Betsy. Professor Waters fairly notes that Breard is susceptible to at least two different readings. On one view, AEDPA’s text precluded use of the Charming Betsy on the canon’s own terms because the statute was unambiguous. A contrasting “internationalist” reading, reflecting the canon’s underpinnings in international comity, indicates that the Court should have declined to apply AEDPA to Vienna Convention claims, because doing so undermined effective implementation of U.S. treaty obligations. Either interpretation is plausible, although keeping the Charming Betsy at bay on the ground that AEDPA lacked any ambiguity is perhaps the more problematic of the two.177 The larger story, however, suggests that the internationalists were correct in claiming defeat. Breard came at just the point when the Court had begun to take partial steps away from the protection of fundamental rights and from the judicial enforcement of international law. Nowhere would the conflict have been more stark than a case pitting the death penalty, recently endorsed by Congress, against a treaty provision granting an international procedural right to criminal defendants. Breard did not mean that resistance to international human rights law had won the day. The Court’s ongoing flirtation with that law in constitutional interpretation showed that any generalization must be made with caution. However, Breard and the other end-of-century cases demonstrated that the road toward a more internationalist jurisprudence would travel a more difficult path than in most other systems.

IV. Conclusion Thanks in no small part to their rigor, Professors Stephan, Dodge, and Waters demonstrate that the Supreme Court’s uses of international law between World War II and the twentyfirst century were so complex, so varied, and at times so apparently inconsistent as to almost defy coherence. Almost, but not quite. Out of the labyrinth, at least two epic themes characterizing postwar U.S. history shape the Court’s approach to international law. One is the nation’s rise as a global power. The other is the vast expansion of rights, which the Court helped advance and which was paralleled by the revolutionary development of individual rights in international law. The interplay between these 176 177

See Chapter 12, p. 399 (citing Breard v. Greene, 523 U.S. 371 (1998)). But see Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int’l L. 675, 743–44 (2003) (arguing that AEDPA was sufficiently clear under the Charming Betsy canon).

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developments – and others to be sure – led to an ebb and flow in how the Court engaged, sidestepped, or battled over treaties, custom, and interpretation. The case law generally shows that during the first decade of the postwar era the Justices deployed more traditional forms of international law to aid the nation’s effort to assert both governmental and economic power abroad. By the second decade of the era, these efforts had mostly given way to the Warren Court’s focus on rights protection. Here, international law played at most a minor role that came nowhere near approaching the potential synergy between domestic rights and their international offspring. This role remained minor with the advent of the Burger Court and the slow and steady reaction to the domestic rights revolution immediately preceding. By the late 1980s, however, international law started to become a significant player in the more general contest between those Justices who desired to extend, or at least maintain, the postwar Court’s rights legacy and those who viewed this effort as judicial usurpation. The Supreme Court entered the new century, in short, with the use of international law perhaps never more contested. The contest might result in the Court following an ever more exceptional path in its skepticism of international law. Then again, the conflict might conclude with the Justices accepting the invitation of increasing globalization. Between these two possibilities, the Court may simply muddle on, just shy of incoherence.

V International Law in the U.S. Supreme Court in the Twenty-First Century Introductory Note David L. Sloss, Michael D. Ramsey, and William S. Dodge The first decade of the twenty-first century was a busy one for international law in the U.S. Supreme Court. The essays in Part V address the Court’s most significant decisions during this period under five headings: (1) treaties, (2) customary international law, (3) constitutional interpretation, (4) statutory interpretation, and (5) the war on terror. Because these decisions are so recent, Part V addresses them differently – with shorter and more opinionated essays. This introductory note provides a brief overview of the decade’s international cases under each of these headings. The essays that follow give more detailed accounts, opinions, and analyses regarding the leading cases.

(1) Treaties after 2000 The Court most starkly confronted the role of treaties in two 2006 cases – Sanchez-Llamas v. Oregon1 and its companion case Bustillo v. Johnson2 – and in Medellin v. Texas3 two years later. All three cases involved individuals who were convicted of criminal offenses after state governments violated the provision of the Vienna Convention on Consular Relations (VCCR) mandating that foreign nationals arrested in the United States shall have the opportunity to speak with their nation’s consulate. State law enforcement in the United States routinely failed to grant this right, a matter that first came to the Court at the end of the twentieth century in Breard v. Greene.4 But the significance of the issue escalated in 2004 when the International Court of Justice (ICJ) found, in the Avena case, that violations of the VCCR required defendants’ sentences and convictions to be revisited and that procedural defaults under domestic law should not stand in the way.5 Sanchez-Llamas and Bustillo posed the question whether the U.S. Supreme Court would defer to the ICJ’s interpretation of the Convention. 1 2 3

4 5

548 U.S. 331 (2006). Bustillo was decided in the same opinion as Sanchez-Llamas, 548 U.S. 331 (2006). 552 U.S. 491 (2008). The Court granted certiorari on Medell´ın’s claims in a different procedural posture in Medellin v. Dretke, 543 U.S. 1032 (2004), but dismissed the writ in light of an intervening presidential order. 544 U.S. 660 (2005). 523 U.S. 371 (1998); see Chapter 10, pp. 327–28; Chapter 12, pp. 399–401. Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 12 (Mar. 31).

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Unlike Sanchez-Llamas and Bustillo, the petitioner in Medellin was one of the persons named in the Avena decision. Therefore, under Article 94 of the United Nations Charter, the United States had an international legal obligation to comply with the ICJ order as it pertained to him. As the Court framed the issue, the key question in Medellin was whether Article 94 and the ICJ order were self-executing. Because the Court had said very little about self-execution for the past two centuries, Medellin became the most important case on self-execution since Foster v. Neilson.6 Although the treaty essay and responses in Part V.A focus on the SanchezLlamas/Bustillo/Medellin line of cases, at least two other developments of treaty law after 2000 are worth noting.7 First, in American Insurance Association v. Garamendi8 in 2003, the Court took an expansive view of the preemptive effect of executive agreements, perhaps going so far as to suggest that mere presidential foreign policy could preempt state law. This issue reemerged in Medellin: the President argued that his policy regarding the VCCR, reflected in a presidential memorandum, could displace state law even if the treaty did not – an argument the Court rejected.9 Second, in Olympic Airways v. Husain10 in 2004 and Abbott v. Abbott11 in 2010, the Court wrestled with issues of treaty interpretation. Among other things, the Court divided on whether it should be guided by decisions of foreign courts regarding the same treaty language. In Olympic, Justice Antonin Scalia’s dissent criticized the Court for ignoring foreign court decisions on the meaning of the Warsaw Convention,12 while in Abbott, Justice John Paul Stevens’ dissent criticized the Court for relying too much on foreign decisions construing the Hague Convention on the Civil Aspects of Child Abduction.13 Notably, despite the high-profile debate over self-execution in Medellin, Olympic applied the provisions of the Warsaw Convention without hesitation.14

(2) Customary International Law after 2000 The Court decided only one customary international law case in the twenty-first century’s first decade, but it held enormous importance. As recounted in Chapter 11, during the late twentieth century lower federal courts began using the Alien Tort Statute (ATS), a previously obscure provision of the Judiciary Act of 1789, as a vehicle for human rights suits based on customary international law.15 Surprisingly, this issue did not reach the Supreme Court until 2004, in Sosa v. Alvarez-Machain.16 That case presented the question whether the ATS could be the basis of a suit by one Mexican national against another for abduction and arbitrary detention at the behest of the U.S. government. 6 7 8 9 10 11 12 13 14 15 16

27 U.S. 253 (1829); see Chapter 1, pp. 20–23. In the decade since 2000, the Court decided roughly twenty cases involving treaties in some fashion. The goal here is simply to flag key cases that raised important issues. 539 U.S. 396 (2003). Medellin, 552 U.S. at 530–32. 540 U.S. 644 (2004). 130 S. Ct. 1983 (2010). 540 U.S. at 658 (Scalia, J., dissenting). 130 S. Ct. at 2008–09 (Stevens, J., dissenting). Olympic, 540 U.S. at 657. The Hague Convention on the Civil Aspects of Child Abduction at issue in Abbott has been implemented by statute. Chapter 11, pp. 366–75. 542 U.S. 692 (2004).

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The customary international law essay and responses in Part V.B assess the Court’s decision in Sosa and its implications for the future of the direct application of customary international law in U.S. courts.

(3) International Law in Constitutional Interpretation after 2000 The role of international law as an interpretive tool enjoyed prominence after 2000, so much so that Part V divides the topic into separate sets of essays for constitutional interpretation and statutory interpretation. In constitutional interpretation, where reliance on international law and foreign practice became especially controversial during the decade, the opening exchange came in Atkins v. Virginia17 in 2002, in which the Court invoked (in a single sentence in a footnote) the views of the “world community” in holding that the Eighth Amendment’s prohibition on cruel and unusual punishment barred the execution of mentally handicapped defendants. Subsequently, the Court looked to international and foreign law in Lawrence v. Texas18 (considering a state law prohibiting homosexual sodomy) and in Roper v. Simmons19 (considering a State’s imposition of the death penalty on a person who was under the age of 18 when the crime was committed). Finally, in Graham v. Florida20 in 2010, the Court looked to foreign practice and international law as it applied the Eighth Amendment to prohibit life imprisonment without possibility of parole for juvenile offenders. In all four cases, the dissenting Justices strongly decried the Court’s use of international and foreign materials to assess domestic constitutional rights21 – a debate that spilled over into academic and popular commentary and even led to hearings before the U.S. Congress. Part V.C presents an essay and responses discussing this controversy.

(4) International Law in Statutory Interpretation after 2000 After 2000, the Court struggled in a series of cases to assess the extraterritorial reach of broadly worded federal statutes. In 2004 the Court revisited the extraterritorial application of U.S. antitrust laws in F. Hoffmann-La Roche Ltd. v. Empagran S.A.22 In 2010 the Court addressed the extraterritorial application of U.S. securities laws for the first time in Morrison v. National Australia Bank Ltd.23 Between these two decisions, the Court decided a number of other statutory cases concerning extraterritoriality: in Small v. United States,24 it held that the federal felon-in-possession-of-a-firearm statute did not apply to convictions in foreign courts; in Pasquantino v. United States,25 it held that the federal wire-fraud statute applied to a liquor smuggling scheme aimed at avoiding Canadian

17 18 19 20 21 22 23 24 25

536 U.S. 304, 316 n.21 (2002). 539 U.S. 558 (2003). In 2003, Justice Ginsburg’s concurring opinion in Grutter v. Bollinger also relied on international law with respect to affirmative action. 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring). 543 U.S. 551 (2005). 130 S. Ct. 2011 (2010). Graham, 130 S. Ct. at 2053 n.11 (Thomas, J., dissenting); Roper, 543 U.S. at 622 (Scalia, J., dissenting); Lawrence, 539 U.S. at 598 (Scalia, J., dissenting); Atkins, 536 U.S. at 347–48 (Scalia, J., dissenting). 542 U.S. 155 (2004). 130 S. Ct. 2869 (2010). 544 U.S. 385 (2005). 544 U.S. 349 (2005).

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taxes; in Spector v. Norwegian Cruise Ship Line Ltd.,26 it held that the Americans with Disabilities Act applied to foreign-flag cruise ships in American waters, except with respect to those ships’ internal affairs; and in Microsoft Corp. v. AT&T Corp.,27 it applied the presumption against extraterritoriality to limit the Patent Act. Although the essay and responses in Part V.D focus on the Court’s extraterritoriality decisions, another line of statutory interpretation cases is worth mentioning. The century’s first decade was an extraordinarily active period for cases under the Foreign Sovereign Immunities Act (FSIA), with the Court issuing eight different opinions interpreting the Act.28 Because foreign sovereign immunity has roots in international law, one might suppose that these cases would show the Court’s use of international law to interpret a statute.29 In most of these cases, however, the Court approached the FSIA no differently than it would have approached a purely domestic statute, taking a fairly textual approach to its interpretation.30 Only one FSIA case referred to international law and practice.31 In contrast, the Court repeatedly characterized the doctrine of foreign sovereign immunity as a gesture of “comity” toward other nations.32 In two of the most prominent cases – Dole Food Co. v. Patrickson and Republic of Austria v. Altmann – this characterization led the Court to apply the FSIA based on the state of affairs at the time of the suit rather than the state of affairs at the time of the conduct giving rise to the suit. In Dole Food the Court held that a foreign corporation’s status as an agency or instrumentality of a foreign state must be judged at the time the suit is filed rather than at the time of the conduct at issue.33 In Altmann, the Court held that the FSIA’s expropriation exception applied to all claims for takings in violation of international law filed after 1976, irrespective of what the rules of immunity might have been at the time of the taking in 1948.34 As the 26 27 28

29 30

31 32 33 34

545 U.S. 119 (2005). 550 U.S. 437 (2007). Samantar v. Yousuf, 130 S. Ct. 2278 (2010) (holding that the FSIA does not apply to individuals); Republic of Iraq v. Beaty, 129 S. Ct. 2183 (2009) (holding that President had authority to waive FSIA’s terrorism exception with respect to Iraq); Ministry of Def. & Support for Armed Forces of Islamic Republic of Iran v. Elahi, 129 S. Ct. 1732 (2009) (considering enforceability of a judgment against Iranian assets); Republic of Philippines v. Pimentel, 553 U.S. 851 (2008) (holding that case must be dismissed if required party is immune under FSIA); Permanent Mission of India v. City of New York, 551 U.S. 193 (2007) (holding that FSIA does not bar suit to validate tax liens against real property owned by foreign state); Ministry of Def. & Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U.S. 450 (2006) (per curiam) (considering enforceability of a judgment against Iranian assets); Republic of Austria v. Altmann, 541 U.S. 677 (2004) (holding that FSIA’s expropriation exception applies retroactively to takings in violation of international law that occurred before 1976); Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) (holding that status as agency or instrumentality of a foreign state is judged at time suit is filed, not at time of conduct at issue, and that a state-owned corporation is eligible for FSIA immunity only if its shares are held directly by foreign state). The Court granted certiorari in one additional case, Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2007), to decide whether a corporation owned by a Canadian province was entitled to FSIA immunity, but held that the lower court lacked appellate jurisdiction. See Chapter 1, pp. 39–40. See, e.g., Samantar, 130 S. Ct. 2278. The Court took a similarly textual approach in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), holding that 28 U.S.C. § 1782’s provision on judicial assistance to foreign tribunals applied to proceedings before the European Commission. See Permanent Mission of India, 551 U.S. at 200 (citing Restatement (Second) of Foreign Relations Law § 68(b) (1965) as evidence of international practice). See Samantar, 130 S. Ct. at 2284; Pimentel, 553 U.S. at 866; Altmann, 541 U.S. at 696; Dole Food, 538 U.S. at 479. 538 U.S. at 478–80. 541 U.S. at 697–700.

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Court explained in Altmann, “the principal purpose of foreign sovereign immunity has never been to permit foreign states . . . to shape their conduct in reliance on the promise of future immunity.”35 It was rather “to give foreign states . . . some present ‘protection from the inconvenience of suit as a gesture of comity.’”36

(5) The War on Terror The final set of contributions in Part V.E relates to the war on terror cases arising in the aftermath of the terrorist attacks on September 11, 2001. These cases are difficult to classify because they involve a complex mixture of statutory law, constitutional law, treaty law, and customary international law. As a result, they have been given their own section. The principal cases are Hamdi v. Rumsfeld37 and Rasul v. Bush38 in 2004, Hamdan v. Rumsfeld39 in 2006, and Boumediene v. Bush40 in 2008. Hamdi considered the constitutional and statutory rights of a U.S. citizen held in the United States as an alleged enemy combatant. Rasul considered whether the federal habeas corpus statute extended to aliens held at Guantánamo Bay, Cuba. Hamdan addressed the legality of military commissions established by the George W. Bush administration to try alien enemy combatants, a question that involved, among other things, a contested interpretation of the Geneva Conventions. In the Detainee Treatment Act of 2005,41 Congress responded to the government’s loss in Rasul by expressly denying the Guantánamo prisoners’ statutory habeas rights, and in the subsequent Military Commissions Act of 2006,42 Congress responded to the government’s loss in Hamdan by enacting new procedures for military commissions. In 2008, the Court reconsidered the rights of the Guantánamo prisoners in Boumediene, concluding that they had a constitutional right to habeas corpus and that the system established by the Military Commissions Act was not an adequate substitute.43 35 36 37 38 39 40 41 42 43

Id. at 696. Id. (quoting Dole Food, 538 U.S. at 479). 542 U.S. 507 (2004). 542 U.S. 466 (2004). 548 U.S. 557 (2006). 553 U.S. 723 (2008). 109 Pub. L. No. 148, 119 Stat. 2680 (2005). 109 Pub. L. No. 355, 120 Stat. 2600 (2006). Boumediene, 553 U.S. at 792. Another war on terror case with international law implications was Munaf v. Geren, 553 U.S. 674 (2008), in which the Court considered habeas petitions brought by two American citizens detained by U.S.-led coalition forces in Iraq. Distinguishing Hirota v. MacArthur, 338 U.S. 197 (1948), the Court held that habeas jurisdiction extended to the petitioners because of their citizenship, but it further held that they could not challenge their impending transfer to Iraqi authorities. On the latter point, the Court quoted Chief Justice Marshall’s statement in The Schooner Exchange that “the jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” 553 U.S. at 694 (quoting The Schooner Exchange v. McFaddon, 11 U.S. 116, 136 (1812)).

V.A

Treaties after 2000

Main Essay Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts Lori F. Damrosch∗

Medellin v. Texas1 and Sanchez-Llamas v. Oregon2 were the first opportunities for the U.S. Supreme Court to speak in the voice of Chief Justice John Roberts on several of the biggest questions at the connecting points between the U.S. legal order and the rest of the world. In writing for the majority in these cases, the new Chief Justice sent signals to several different audiences about whether and how the United States will fulfill its international obligations. The messages differ markedly from those sent by the divided Court in Hamdan v. Rumsfeld,3 in which Roberts did not participate.4 Hamdan was widely (although not universally) perceived as a reaffirmation of the Court’s historic role in ensuring that individuals detained under governmental authority have a judicial forum in which their legal claims – including treaty claims – can be determined. The Hamdan majority found reason to believe that Congress intended the United States to comply with the international laws of war embodied in the 1949 Geneva Conventions, and it interpreted those obligations in a way that contributed to the perception of observance rather than abrogation.5 Medellin and Sanchez-Llamas presented core issues of treaty jurisprudence in ways Hamdan did not. They marked the conclusion of a decade-long sequence involving the effects in U.S. law of the Vienna Convention on Consular Relations6 and several other treaties providing for international adjudication of disputes arising under the Vienna Convention.7 The U.S. courts that wrestled with these questions between 1998 and 2008 had to decide, among other things, the following: ∗

1 2 3 4 5 6 7

Hamilton Fish Professor of International Law and Diplomacy and Henry L. Moses Professor of Law and International Organization, Columbia University. The author was principal drafter of the Briefs of International Court of Justice Experts as Amici Curiae in both the Medellin and Sanchez-Llamas cases. 552 U.S. 491 (2008). 548 U.S. 331 (2006). 548 U.S. 57 (2006). Roberts took no part in Hamdan, having sat on the panel below whose ruling was under review. See David Golove, The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition, in Part V.E, p. 563. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Those treaties are the Vienna Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487; the UN Charter, 59 Stat. 1051; and the Statute of the International Court of Justice, 59 Stat. 1055. The Optional Protocol, to which the United States was party from 1970 until 2005, provided the jurisdictional basis for suits before the ICJ concerning

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r when treaties would give rise to rights and remedies for individuals in the absence of implementing legislation r which organ – executive or judicial; state, federal, or international – had authority to decide on the content of the treaty obligations and remedies for breach r what weight should be given to the conclusions of an international dispute settlement process at the International Court of Justice (ICJ) to which the United States had consented and in which it fully participated r whether ICJ rulings would be given effect in U.S. law r how the treaty rights that had been determined at the international level would relate to procedural conditions for the exercise of such rights (“procedural default” rules) established by state or federal law.

These questions were joined in Medellin, and most of them were also in play in SanchezLlamas (although in a less dramatic form, because the petitioners in Sanchez-Llamas were not directly covered by the international judgment involved in Medellin). Chief Justice Roberts did not bring an “internationalist” sensibility to the resolution of these questions. His professional experience had not included international diplomacy – unlike his predecessors John Jay, John Marshall, and Charles Evans Hughes, who had been Secretaries of State, or William Howard Taft, who had been President. He had no connections with international dispute settlement procedures – never having negotiated an arbitration treaty, as Jay had;8 nor represented the United States in an international arbitration, as Chief Justice Morrison Waite did;9 nor sat as arbitrator of an international dispute, as Taft had;10 nor served on an international court, as Hughes had;11 nor asked the U.S. Senate to approve U.S. participation in such a system.12 In contrast to predecessors who envisioned the U.S. Supreme Court as a potential model for international courts, he had never advocated that the United States should lead by example in a system of international adjudication.13 Beginning in mid-nineteenth century, numerous cases involving international arbitration between the United States and foreign states have reached the Supreme Court,

8

9

10 11 12

13

application of the Vienna Convention. Article 94 of the UN Charter provides that members of the United Nations “undertake to comply” with ICJ decisions in cases to which they are parties. Article 59 of the ICJ Statute makes ICJ judgments binding between the parties in respect of the particular case. Treaty of Amity, Commerce, and Navigation (Jay Treaty), signed at London, November 19, 1794, 8 Stat. 116, TS 105. See Jerald A. Combs, The Jay Treaty (1970); Samuel Flagg Bemis, Jay’s Treaty: A Study in Commerce and Diplomacy 285 (2d ed. 1962). Waite served as counsel for the United States in the Alabama Claims arbitration with Great Britain after the Civil War, which sat in Geneva beginning in 1871 and resulted in an award of $15,500,000 in favor of the United States. In the afterglow of that arbitral triumph, President Ulysses S. Grant nominated him for the Chief Justiceship, which he held from 1874 until 1888. Taft, during his tenure as Chief Justice, arbitrated the Tinoco Claims dispute between Great Britain and Costa Rica. Hughes was serving as a judge of the Permanent Court of International Justice (PCIJ) when President Hoover offered him the nomination to the Chief Justiceship. Taft’s administration presented several arbitration treaties to the Senate but declined to proceed with ratification after the Senate attached unacceptable conditions. Hughes, while Secretary of State, tried to negotiate terms that would have enabled the United States to become party to the PCIJ Statute but could not achieve a compromise acceptable to both the Senate and the League of Nations. Compare, for example, the many addresses by Taft and Hughes to this effect, presented at annual meetings of the American Society of International Law and elsewhere. See, e.g., Address by William Howard Taft, 16 ASIL Proc. 109, 112 (1922); Addresses by Charles Evans Hughes, 15 ASIL Proc. 149, 150 (1921); 17 ASIL Proc. 75 (1921); 19 ASIL Proc. 1 (1925); 20 ASIL Proc. 1 (1926); 21 ASIL Proc. 1 (1927); 23 ASIL Proc. 1 (1929).

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with results generally supportive of the U.S. interest in international dispute settlement. Against this historical record, Medellin stands out as the only case in which the Court has undermined the efforts of the U.S. political branches to implement a legally binding settlement of a dispute that had created friction with a foreign nation. It thus appears discontinuous with history – but more disturbingly, it sets the tone for the future. This essay begins with a brief summary of the Vienna Convention cases in U.S. courts and at the ICJ between 1998 and 2008, pointing out linkages to two centuries of U.S. treaty cases at the Supreme Court, while also highlighting the issues of first impression ultimately decided in Sanchez-Llamas and Medellin (Part I). It then turns to themes of continuity and change along three dimensions: supremacy of treaty obligations over state law, presumption of congressional intent to comply with international obligations, and judicial remedies for treaty violations (Part II). It finally compares the Court’s treatment of international adjudication in these cases to its earlier engagements with international dispute settlement (Part III). The conclusion returns to the messages that the Court’s different audiences can hear in these cases.

I. The Vienna Convention Cases in U.S. Courts and at the ICJ In 1998, the Supreme Court and the ICJ were simultaneously presented with a treaty ´ violation claim involving a death row inmate in Virginia, Angel Francisco Breard, a Paraguayan national. Breard alleged that he had never been informed of his right under the Vienna Convention to communicate with Paraguay’s consular post and that this failure had prejudiced him in his sentencing. Paraguay initiated an action at the ICJ under the Vienna Convention’s Optional Protocol, which gave the ICJ jurisdiction to make final, binding judgments in disputes involving application of the Vienna Convention. The ICJ entered an interim order calling on the United States to take all measures to ensure that Breard would not be executed pending the outcome of the international procedure.14 The Supreme Court refused to grant a stay of execution and denied Breard’s petition for writ of certiorari with a brief per curiam order, explaining that although the ICJ’s order was entitled to “respectful consideration,” it was not controlling in the United States where the petitioner had failed to raise his treaty claim in state court and had not complied with federal statutory provisions, enacted after the treaty, regarding the availability of federal habeas corpus.15 In a similar sequence in 1999, the Court likewise declined to stay proceedings involving the LaGrand brothers, German nationals convicted of capital murder in Arizona, following the ICJ’s entry of an interim order in a case initiated by Germany.16 In 2003, Mexico initiated a similar ICJ case involving more than fifty of its nationals on death row in the United States, which reached final judgment under the name Avena and Other Mexican Nationals (Avena).17 The United States fully participated in the Avena litigation and never contended (nor could it have) that the ICJ lacked jurisdiction or that the judgment was anything other than binding as a matter of international law. 14 15 16

17

See Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 248. Breard v. Greene, 523 U.S. 371, 375–77 (1998). See Chapter 10, pp. 327–28. Federal Republic of Germany v. United States, 526 U.S. 111 (1999). For the ICJ order in Germany’s case, see LaGrand (Ger. v. U.S.), 1999 I.C.J. 9. One of the LaGrand brothers had already been executed by the time of these developments, and the other was executed shortly after the Supreme Court denied the writ. Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12.

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The Avena judgment requires the United States, “by means of its own choosing,” to afford review and reconsideration of the convictions and sentences of fifty-one named Mexican nationals whose rights under the Vienna Convention had been violated.18 Following the Avena judgment, President George W. Bush issued a memorandum directing compliance with the judgment by affording the review it requires through actions in state courts.19 Soon thereafter, Secretary of State Condoleezza Rice notified the UN Secretary-General of the United States’ withdrawal from the Optional Protocol. One member of the Avena group, José Ernesto Medell´ın, sought to enforce his treaty rights against the State of Texas in a claim that the Supreme Court eventually decided in 2008. The Texas Court of Criminal Appeals initially found that Medell´ın had defaulted his Vienna Convention claim as a matter of Texas procedural law because he had not raised it at trial. After the ICJ ruled in his favor, Medell´ın brought a federal habeas petition, but the lower federal courts denied relief in reliance on Breard.20 The Supreme Court initially agreed to hear the case, but after issuance of the President’s memorandum, it dismissed the petition to allow Medell´ın to pursue relief in state court.21 The Texas courts again refused to grant relief: although state procedural rules allowed Medell´ın to raise a “previously unavailable” legal claim, the Texas Court of Criminal Appeals ruled that Medell´ın’s claim based on Avena and the UN Charter did not qualify because the Avena judgment was not legally binding as a matter of federal law.22 In 2008, the case returned to the Supreme Court on review of Medell´ın’s state habeas petition. While Medell´ın was pursuing relief in Texas courts, the Supreme Court took up the petitions of two other foreign nationals, Moises Sánchez-Llamas and Mario Bustillo, who claimed to have been denied their Vienna Convention rights by the States of Oregon and Virginia, but who were not part of the Avena group. Bustillo had been denied relief in state court on grounds of procedural default. Sánchez-Llamas had preserved his claim procedurally, but the state court ruled that suppression of evidence was not an appropriate remedy for a Vienna Convention violation. The Supreme Court decided these petitions together in 2006. All of these petitions were unsuccessful. In the final rulings in Medellin and SanchezLlamas, it is possible to discern elements of continuity with the past, but also notable departures from two centuries of judicial precedents supporting compliance with the United States’ international obligations. Before turning to the themes of continuity and change, it is important to make clear that Medellin and Sanchez-Llamas presented questions of first impression, as to which no prior precedents were directly determinative. Never before had the Supreme Court addressed the domestic legal effects of a final judgment of an international court that was indisputably binding on the United States, as it was in Medellin. Nor had it considered the precedential authority of such a judgment in cases raising similar issues, as Sanchez-Llamas did. The only previous effort to obtain domestic judicial enforcement of a final ICJ judgment had not reached the Supreme Court,23 and the 18 19 20 21 22 23

Id. at 73. One state court granted review and reconsideration in implementation of Avena. See Torres v. State, 120 P.3d 1184 (Okla. 2005). See Medellin, 552 U.S. at 503. Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004). Medellin v. Dretke, 544 U.S. 660 (2005). Ex parte Medellin, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006). Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).


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lower court had rejected that claim on grounds largely inapplicable to the issues in Medellin.24 Nor did Breard definitively resolve the issues the Court later faced in Sanchez-Llamas and Medellin. Although the majority opinions in those cases treated Breard as controlling precedent,25 one may well wonder why: Breard denied certiorari without full briefing – a procedural posture ordinarily not giving rise to stare decisis effects – and the international proceedings in 1998 had produced only an interim order of then-debatable legal force.26 Not until Medellin did the Court directly confront the effects in U.S. law of an international judgment that was indisputably binding on the United States. Breard also presented substantially different issues, because it involved a federal procedural default rule under the Antiterrorism and Effective Death Penalty Act (AEDPA); by contrast, neither Sanchez-Llamas nor the 2008 Medellin decision involved AEDPA. Because AEDPA had been the principal basis for the Breard decision, the Court should not have treated Breard as foreclosing de novo examination of issues that it had not decided in 1998. Although the issues in Medellin and Sanchez-Llamas were novel, earlier precedents provided ample basis for resolving them in a manner enabling the United States to fulfill its international obligations. The chapters in this volume surveying the history of treaty cases from earlier periods have highlighted relevant doctrines, including the following: r Supremacy of federal treaty obligations: The 1787 Constitution firmly established the supremacy of treaty obligations over conflicting state law, and two centuries of precedent confirmed that the federal courts are a proper forum for removing state impediments to treaty compliance.27 r Presumption of congressional intent to comply with international obligations: As early as 1804, the Supreme Court announced a rule of statutory construction presuming that Congress intends the United States to comply with its international obligations in the absence of a clear congressional statement to the contrary, and two centuries of authority supported judicial application of presumptions favoring compliance with international law.28 24

25

26

27

28

Most pertinently, Congress and the President had repudiated the Nicaragua judgment in a subsequent conflicting statute, which the court of appeals found controlling. Id. at 936–37. Although the court of appeals suggested in dicta that an ICJ judgment might not be self-executing, the ICJ’s Nicaragua judgment did not involve a self-executing treaty, and (unlike in Medellin) the plaintiffs who sought enforcement were not directly covered by the ICJ judgment. Id. at 938. Sanchez-Llamas found that Breard “controlled” the procedural default question raised by petitioner Bustillo in the related petition. 548 U.S. at 351–53. In Medellin I, the per curiam order dismissing certiorari observed that “we confronted no final ICJ adjudication” at the time of the Breard decision, 544 U.S. at 665 n.3, but Medellin II treated key questions before it as having been conclusively resolved by Breard. 552 U.S. at 517. Breard characterized the ICJ’s order as merely “requesting” the United States to preserve the status quo pending final decision. 523 U.S. at 374. This corresponded to the position of the United States, which maintained that the ICJ Statute did not authorize the ICJ to enter binding orders prior to final judgment. See Lori Fisler Damrosch, The Justiciability of Paraguay’s Claim of Treaty Violation, 92 Am. J. Int’l L. 697, 702 n.36 (1998). Only in 2001 did the ICJ definitively rule that its provisional measures orders are internationally binding. See LaGrand (Ger. v. U.S.), 2001 I.C.J. 466. Ware v. Hylton, 3 U.S. 199 (1796). See Chapter 1, pp. 13–14; Chapter 2, pp. 85–87; Chapter 6, pp. 215–16. Although Professor Stephan discerns somewhat different patterns for the second half of the twentieth century, his account confirms that the Court continued to strike down state practices contrary to international treaties. See Chapter 10, pp. 339–42. Chapter 1, p. 37 (discussing Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804)); Chapter 2, pp. 74–75 (discussing Whitney v. Robertson, 124 U.S. 190 (1888), and other late-nineteenth-century cases);

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r Judicial remedies for individuals affected by treaty violations: From its earliest days, the Court likewise interpreted and applied treaties to afford remedies to individuals and continued doing so into the twentieth century.29

For more than two hundred years, these and other doctrines provided a framework for the judicial role in fulfillment of U.S. treaty obligations. In significant respects, the Court appears to have departed from them in its latest cases.

II. Continuity and Change: Three Doctrines and Their Shifting Applications A. Supremacy of Federal Treaty Obligations A central objective of the 1787 Constitutional Convention was to overcome the difficulties of state noncompliance with U.S. treaties.30 John Jay, soon to become the first Chief Justice, provided the intellectual underpinning for establishing the supremacy of treaties over state law. In an October 1786 report to the Continental Congress, written in his capacity as Secretary for Foreign Affairs, Jay catalogued the numerous state laws impeding fulfillment of U.S. obligations under the 1783 Treaty of Peace with Great Britain31 – a treaty that had been among Jay’s salient diplomatic accomplishments.32 Although Jay was not present at the Philadelphia Convention, the Convention delegates embodied his ideas on treaty supremacy in Article VI. During the ratification debates, Jay drafted five Federalist Papers, all devoted to the virtues of a federal union for securing peace and avoiding conflict with foreign nations. Of these, Nos. 3 and 64 specifically addressed treaty compliance. In No. 3, Jay observed that treaty violations are among the just causes of war; he thus emphasized the “high importance to the peace of America that she observe the laws of nations” toward all the powers with which she had already formed treaties.33 In No. 64, he advanced the case for treaties as the supreme law of the land, observing that no nation would want to make a bargain with the United States that the United States would not fulfill.34 In Ware v. Hylton, the Court established that the 1783 treaty with Britain prevailed over state laws confiscating British debts. Justice Samuel Chase wrote: [I]t is the declared duty of the State judges to determine any Constitution, or the laws of any State, contrary to the treaty (or any other) made under the authority of the United States, null and void. National or Federal Judges are bound by duty and oath to the same conduct.35

29

30 31 32 33 34 35

Chapter 6, p. 208. While Chapter 10 emphasizes other aspects of the interaction between treaties and statutes, there is no indication that the Court abandoned its longstanding preference for harmonizing statutes with treaty obligations in the late twentieth century. Chapter 1, pp. 14–16; Chapter 2, pp. 66–72; Chapter 6, pp. 213–15. Professor Stephan’s chapter suggests that the Court’s jurisprudence on this point may have changed significantly after World War II, with more emphasis on political than judicial remedies. See Chapter 10, pp. 321–31. See, e.g., Chapter 1, pp. 9–12; Martin S. Flaherty, Are We to Be a Nation? Federal Power vs. “States’ Rights” in Foreign Affairs, 70 U. Colo. L. Rev. 1277, 1305–07 (1999). 31 Journals of the Continental Congress at 781–874 (Oct. 13, 1786) (John C. Fitzpatrick ed., 1934); Walter Stahr, John Jay 202–05, 246 (2005). See Stahr, supra note 31, at 145–95. The Federalist No. 3, at 43 (Rossiter ed. 1961). The Federalist No. 64, at 394 (Rossiter ed. 1961). 3 U.S. 199, 236–37 (1796) (Chase, J.).


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Thus began a continuous line of cases, ably recapitulated elsewhere in this volume, in which the Supreme Court fulfilled the role envisaged by the Framers of ensuring that state treaty violations are avoided and remedied. The Vienna Convention cases appear discontinuous with these precedents. Beginning with Breard, the Court insisted on strict compliance with state and federal procedural rules as a condition to invocation of treaty rights. The procedural rule applied in Breard involved a later-in-time federal statute, but the Court used language that appeared to make similar principles applicable to state procedural default rules. To the extent that procedural default rules shield state treaty violations from effective remedy, they arguably invert the priority established by the Supremacy Clause. Breard offered several justifications for foreclosing a procedurally defaulted treaty claim, which Sanchez-Llamas later extended uncritically from federal to state procedural rules. First, the Court said, “it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State”36 and that this proposition is embodied in Article 36(2) of the Vienna Convention itself. While it quoted that article in part, the Court engaged in no analysis of whether the rules in question “enable full effect to be given to the purposes” of the treaty, as the treaty expressly requires.37 Further, the Court stated that “[i]t is the rule in this country that assertions of error in criminal proceedings must first be raised in state court” or else they will be considered procedurally defaulted.38 Finally, it held that a later-in-time federal statute established procedural conditions for the exercise of constitutional and statutory as well as treaty rights in federal habeas proceedings and that Breard’s treaty claims were governed by this statute, just as a constitutional claim would be.39 Given that the Breard Court found that the federal statute trumped the treaty under the later-in-time rule, there was no occasion for it to rule directly on the relationship between treaties and state procedural default rules; that question should have been considered an open one in later cases.40 Subsequent to Breard, in a full-scale adversarial procedure where the United States represented the interests of U.S. States with procedural default rules that had been applied to foreclose presentation of treaty claims, the ICJ held that some (not all) applications of procedural default rules would prevent giving full effect to the purposes of the treaty within the meaning of Article 36(2).41 The ICJ’s issuance of two fully reasoned opinions differing with Breard’s summary conclusions should have prompted the Supreme Court to revisit the matter in Sanchez-Llamas (where one of the two petitioners, Mario Bustillo, had defaulted his treaty claim).42 In Sanchez-Llamas, however, where the petitioners were 36 37

38 39 40

41 42

523 U.S. at 375. Article 36(2) provides more fully that rights under the treaty article “shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” 523 U.S. at 375–76. 523 U.S. at 376. The majority opinion in Sanchez-Llamas incorrectly assumed that Breard resolved this question. 548 U.S. at 352 (finding that procedural default was the “principal reason” for the resolution in Breard, without distinguishing between state and federal default). LaGrand, 2001 I.C.J. 466, paras. 50, 58–60, 79–91, 125, 128(7); Avena, 2004 I.C.J. 12, paras. 111–13, 133–34, 138. As noted earlier, the significance of state procedural default as a ground for denial of federal habeas corpus was one of the issues left unresolved when the Court dismissed Medellin I, but was no longer at issue in Medellin II.

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not directly covered by a binding ICJ judgment, the Supreme Court saw no reason to revisit Breard. In reaffirming and extending Breard without further analysis, the SanchezLlamas majority gratuitously asserted that the ICJ failed to appreciate the U.S. system of adversarial criminal procedure – a criticism wholly unwarranted given the ICJ’s close examination of the issues.43 Procedural default rules may have a venerable pedigree, as acknowledged in the Supreme Court’s jurisprudence in federal habeas cases. One may wonder, however, whether the Founding generation – or the Supreme Court until the most recent years – would have allowed such rules to frustrate compliance with internationally binding obligations, in the face of repeated state violations leading to chronic friction with treaty partners, which fulfillment of the international obligations could have alleviated.44

B. Presumption of Congressional Intent to Comply with International Obligations As previous chapters have explained, the Supreme Court from at least 1804 to the present era has presumed that Congress intends to legislate compatibly with U.S. international obligations. Thus, under what we now call the Charming Betsy canon, the Court will not construe a statute to place the United States in violation of customary international law unless no other construction is possible,45 and it will interpret later-in-time statutes consistently with existing treaty obligations if there is any way to reconcile the two.46 The Court reaffirmed this principle as recently as 2004, when it said that its rules of statutory construction reflect “principles of customary international law – law that (we must assume) Congress ordinarily seeks to follow.”47 The Vienna Convention cases provided several occasions in which the Court might have invoked a Charming Betsy analysis, but it did not, nor did it instruct lower courts to do so. In Breard, without benefit of briefing, the Court summarily concluded that AEDPA, a later-in-time statute, controlled the exercise of treaty rights in federal habeas proceedings;48 it did not consider possible constructions of AEDPA that might have allowed fulfillment of U.S. treaty obligations. The Court did not examine whether Congress intended AEDPA to immunize state treaty violations from federal review under all circumstances nor whether procedural rules applied by state courts could bar federal judicial scrutiny of treaty questions. When related issues reached the Court again in the first round of Medellin, the Court dismissed the writ to allow the petitioner to pursue relief in state court. Justice Sandra Day O’Connor, in a dissenting opinion joined by Justices John Paul Stevens, David Souter, and Stephen Breyer, identified several AEDPA issues on which the court of appeals should have allowed further judicial consideration of Medell´ın’s federal habeas petition.49 The AEDPA issues disappeared from the case in the next round, which 43 44 45 46 47

48 49

Compare Sanchez-Llamas, 548 U.S. at 356–57, with Avena, paras. 107–14, 133–34. Cf. Hopkirk v. Bell, 7 U.S. 454 (1806), 8 U.S. 164 (1807) (treaty of peace with Britain prevents application of state statute of limitations on claim of British creditor). Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). Whitney v. Robertson, 124 U.S. 190 (1888); Chew Heong v. United States, 112 U.S. 546, 549 (1884). F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155, 164 (2004) (citing Charming Betsy). See Ralf Michaels, Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century, in Part V.D, pp. 533–46. 523 U.S. at 376. 544 U.S. at 672, 677–80 (O’Connor, J., dissenting).


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reached the Supreme Court on direct appeal from state court rather than as a federal habeas petition. (Justice O’Connor disappeared as well, having resigned from the Court between the two Medellin installments. Her departure shifted the balance on the Court with respect to receptivity to various types of international law claims.) In Sanchez-Llamas, the Court declined the opportunity to reexamine Breard.50 Instead it expanded Breard’s scope beyond federal habeas claims governed by AEDPA to encompass the application of state procedural rules in state court.51 Finally, in its second Medellin encounter, with AEDPA no longer in play, the Court gave short shrift to the U.S. government’s argument that a federal statute, the United Nations Participation Act,52 authorized the President to implement a binding ICJ judgment. The Court’s refusal to give this statute a construction that would have enabled the United States to fulfill its obligation under Article 94 of the UN Charter sits uneasily with previous authority instructing that statutes enacted to implement treaty obligations should be construed to permit rather than frustrate treaty compliance.53 Given the Court’s acknowledgment in Medellin that ICJ judgments entail internationally binding obligations,54 it is regrettable that the Court failed to explore possible constructions of congressional intent consistent with longstanding judicial presumptions favoring compliance with international law. Because it considered Article 94’s “undertaking” of compliance with ICJ judgments to be non-self-executing, it found the President to lack authority to implement the judgment. The Court’s conclusion that the Senate consented to ratification on the understanding that Article 94 was non-self-executing is tantamount to saying that the Senate inverted the usual presumption that Congress intends compliance with international obligations. In Sanchez-Llamas, unlike in Medellin, the Court was asked to follow the ICJ’s interpretation of the Vienna Convention as regards two petitioners not covered by the Avena judgment itself. Petitioners and their amici argued that U.S. courts should apply the treaty, as interpreted by the ICJ, in respect of all individuals with the kinds of treaty claims that the ICJ had determined to be well founded. The Court’s determination to go its own way in Sanchez-Llamas places it in direct opposition to the authoritative international interpreter of the treaty, with the likely result of impeding compliance with the Vienna Convention and thereby undermining the compliance structure for the treaty as a whole.

C. Judicial Remedies for Treaty Violations The Supreme Court in Medellin held that the UN Charter provision requiring U.S. compliance with Avena was non-self-executing and therefore required the enactment of legislation before the judgment could be given effect as U.S. law. This aspect of Medellin prompted voluminous scholarly commentary, much of it critical.55 The criticisms are 50

51 52 53 54 55

Although petitioners did not directly call for reconsidering Breard, amici curiae did so. See Brief of International Court of Justice Experts as Amici Curiae in Support of Petitioners, Sanchez-Llamas v. Oregon (Dec. 22, 2005), at 9. 548 U.S. at 351–52. 22 U.S.C. § 287a. See Chapter 6, p. 208. 552 U.S. at 504. For criticisms, see, e.g., Steve Charnovitz, Revitalizing the U.S. Compliance Power, 102 Am. J. Int’l. L. 551 (2008); Carlos Manuel Vázquez, Less than Zero? 102 Am. J. Int’l L. 563 (2008); Carlos Manuel Vázquez,

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well founded in light of the historical perspectives elaborated in this volume and need not be restated at length here. Although the Court’s early decision in Foster v. Neilson56 articulated a distinction between self-executing and non-self-executing treaties, that distinction did not generally operate as an impediment to judicial enforcement of treaties in suits by private parties claiming treaty-based rights, nor should it in light of the Supremacy Clause. In scores of cases surveyed in this volume, the Court has typically afforded judicial remedies for treaty violations, regardless of whether the treaty itself specified the availability of such remedies or the political branches had pronounced themselves in favor of judicial enforcement. Foster, arguably the only Supreme Court case to have declined to give effect to a treaty on non-self-execution grounds, was overruled on that point a few years later when the Court reexamined the same treaty with the Spanish translation at hand and realized that it had misunderstood the import of the words it had previously found to make the treaty non-self-executing.57 By construing Article 94 of the UN Charter as requiring legislative action, the Medellin Court made an error similar to the mistake in Foster that Percheman later corrected.58 The Court could and should have treated the Medellin petition as presenting a wellfounded claim for federal judicial action to remedy a state treaty violation, in the face of the State’s refusal to correct its own error. Because the State failed to provide a judicial hearing to determine whether the treaty violation had prejudiced the individual whose rights were admittedly violated, and because an internationally binding judgment required the United States to afford such a hearing, the Supremacy Clause should have been sufficient authority for the Court to grant relief. Without corrective action by the U.S. Congress, the United States cannot implement its existing and prospective treaty obligations. Medell´ın’s execution (in August 2008)59 constituted a further violation of U.S. treaty obligations, as the ICJ noted.60 Further, Medellin might have unsettled the expectations under which the Senate approved hundreds or even thousands of treaties without implementing legislation on the assumption of their self-executing status. In the wake of Medellin, the Senate altered its treaty approval practices. Each new treaty will now be accompanied by an explicit statement as to whether the prospective obligation is (or is not) self-executing and does (or does not) give rise to private rights of action – which are separate inquiries under the Medellin

56 57

58 59 60

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008) [hereinafter Vázquez, Treaties as Law of the Land]. For views more sympathetic to the outcome, see Curtis A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties, 102 Am. J. Int’l L. 540 (2008); Ernest A. Young, Treaties as “Part of Our Law,” 88 Tex. L. Rev. 91 (2009). 27 U.S. 253 (1829). United States v. Percheman, 32 U.S. 51, 88–89 (1833). For a recent reexamination of Foster and Percheman, challenging the conventional account in several respects, see David Sloss, Treaties and the Constitution: Enforcing Treaties Against the States (draft on file with author). For explanation of Percheman’s partial overruling of Foster, see Vázquez, Treaties as Law of the Land, supra note 55, at 607–08, 628. The Court denied his final petition seeking a stay until Congress could act. Medellin v. Texas, 554 U.S. 759 (2008). See Request for Interpretation of the Judgment of 31 March 2004 in Avena and Other Mexican Nationals, Provisional Measures (Mex. v. U.S.), 2008 I.C.J. 311 (July 16) (ordering provisional measures to ensure that named Mexican nationals would not be executed); Request for Interpretation of the Judgment of 31 March 2004 in Avena and Other Mexican Nationals (Mex. v. U.S.), 2009 I.C.J. 139 (January 19) (unanimously finding that the United States breached its obligations under that provisional measures order).


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analysis.61 Almost all of the seventy-eight treaties approved by the Senate in September 2008 included some version of such a statement.62

III. International Dispute Settlement at the Supreme Court before Medellin As the introduction to this essay observed, the Supreme Court had not previously considered the effects in U.S. law of a final judgment of an international court of the sort involved in Medellin. It had, however, frequently encountered cases involving international arbitration between the United States and foreign states, and it had generally exercised its judicial powers sympathetically to the international procedures. Here, it suffices to note several of the international disputes that reached the Supreme Court during or after their presentation to international arbitration, with comparisons to issues that arose in Medellin.63 It is not possible to elaborate here on the many respects in which international dispute settlement has advanced U.S. interests. Well-known examples include the Jay Treaty arbitrations resolving disputes with Great Britain64 and the Alabama Claims arbitration with Britain after the Civil War.65 The latter arbitration produced an award of $15,500,000 in favor of the United States, which Britain promptly paid. That payment resulted in various lawsuits involving rival claimants to portions of the fund, which reached the Supreme Court on several occasions.66 The post-arbitration litigation, which did not entail any continuing controversy with Britain, concerned the sums paid to the United States as a nation, as to which the Supreme Court held that no individual claimant had a lien.67 A different set of issues arose in connection with post-arbitration challenges to an award of a Mexican-American claims commission (one of several between the two countries in the late nineteenth and early twentieth centuries),68 which according to an 1868 treaty was to settle certain claims of U.S. nationals against Mexico. As with the Alabama Claims, the arbitration yielded an award in favor of the United States, which Mexico paid as expected. Litigation came to the Court recurrently between 1884 and 1899 in respect of allegations that certain claims presented to the commission by the U.S. government on behalf of U.S. private parties had been tainted by fraud.69 Pointing to language in the arbitration treaty concerning the final and binding nature of the arbitral award, those parties demanded to be paid from the fund. The State Department withheld payment pending investigation of the fraud allegations, and Congress instructed that a thorough 61 62 63

64 65 66 67 68 69

552 U.S. at 506 n.3. See John R. Crook, Contemporary Practice of the United States, 103 Am. J. Int’l L. 132, 135–36 (2008). See Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 Colum. L. Rev. 833 (2007) (showing the long history of referring such disputes to third-party settlement and finding that such referrals have not raised significant constitutional difficulties). See Bemis, supra note 8; Combs, supra note 8. On the relationship between the Jay Treaty arbitrations and Article III of the Constitution, see Monaghan, supra note 63, at 852–56. See 1 John Bassett Moore, History and Digest of International Arbitrations to which the United States Has Been a Party 496–665 (1898). E.g., Great Western Ins. Co. v. United States, 112 U.S. 193 (1884); United States v. Weld, 127 U.S. 51 (1888); Williams v. Heard, 140 U.S. 529 (1891). Williams, 140 U.S. at 537–38 (citing United States v. Weld). See Abraham Feller, The Mexican Claims Commissions, 1923–1934 (1935). See Frelinghuysen v. Key, 110 U.S. 63 (1884); United States ex rel. Boynton v. Blaine, 139 U.S. 306 (1891); La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899).

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investigation be conducted. In rejecting the claimants’ demands (first while the executive branch was attempting to resolve Mexico’s concerns through diplomatic negotiations and later after facts proving the fraud had been established), the Court explained that “[i]nternational arbitration must always proceed on the highest principles of national honor and integrity”70 and that the legislation effectively strengthened “the principle that an award by a tribunal acting under the joint authority of the two countries is conclusive between the governments concerned and must be executed in good faith unless there be ground to impeach the integrity of the tribunal itself.”71 The Court ultimately concluded that the award had been obtained by fraud perpetrated by the claimants on both governments and on the tribunal, and that the claimants could therefore not receive any of the funds paid by Mexico pursuant to the award.72 The Medellin disposition is also difficult to reconcile with the Court’s previous treatment of one of the most ambitious international dispute settlement undertakings in history: the arbitration of U.S. nationals’ claims against Iran through the Iran-United States Claims Tribunal. In Dames & Moore v. Regan,73 the Court rejected constitutional challenges to an executive agreement that foreclosed U.S. nationals from maintaining their claims against Iran in any forum other than the arbitral tribunal established by that agreement. The Court’s decision precluded continued litigation in U.S. courts, thereby changing the rule of decision in Dames & Moore and hundreds of similar cases. Applying Justice Robert Jackson’s tripartite analysis from Youngstown Sheet & Tube Co. v. Sawyer,74 the Court sustained this exercise of presidential power, explaining that claims by nationals of one country against another can be “sources of friction” in international relations and that dispute settlement procedures accepted by the President with Congress’s acquiescence are a traditional and proper method for resolving such grievances.75 Although the Medellin majority cited Dames & Moore several times, the disposition in Medellin gave less deference to a treaty-based dispute settlement procedure (approved by the Senate under Article II of the Constitution) than the Court had given to the sole executive agreement in Dames & Moore. It thereby aggravated a serious dispute with Mexico. Finally, in denying the President the authority to implement a binding international judgment, the Medellin Court moved away from prior decisions invalidating state laws that conflicted with executive branch positions concerning actual or potential disputes with foreign nations. In American Ins. Ass’n v. Garamendi,76 the Court held that an executive policy favoring settlement of private claims against foreign insurance companies, reflected in executive agreements with the companies’ national governments, prevailed 70 71 72

73 74 75 76

Frelinghuysen, 110 U.S. at 73. La Abra, 175 U.S. at 463. Justice Breyer, dissenting in Medellin, referred to the nineteenth-century Mexican claims cases in a paragraph addressed to the issue of whether an international judgment or award is conclusive of the rights of a private individual whose legal claim has been espoused by his government (as Medell´ın’s claim had been by Mexico in the ICJ litigation). 552 U.S. at 558 (Breyer, J., dissenting). His point was that espousal of a claim and its presentation to an international tribunal result in legal consequences for both the individual whose claim is so determined and for the nation that presented the claim. His reasoning responded to the majority’s assertion, id. at 511–12 n.7, that “Medell´ın does not and cannot have a case before the ICJ under the terms of the ICJ Statute.” 453 U.S. 654 (1981). 343 U.S. 579, 635–38 (1952). 453 U.S. at 679–80. 539 U.S. 396 (2003).


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over a state disclosure statute aimed at inducing such companies to compensate Holocaust victims beyond the terms of the agreements.77 In Crosby v. Nat’l Foreign Trade Council,78 the Court invalidated a state law restricting private companies’ ability to do business with Burma because the state law conflicted with a federal statute imposing less stringent restrictions;79 among other things, the state law had embroiled the United States in proceedings brought by the European Union and Japan under the dispute settlement procedure of the World Trade Organization (WTO) (although the WTO complaint had been suspended and it is unclear what weight the Court gave to its initiation).80 In the foregoing cases, the Court appeared sensitive to the overriding national interest in ensuring good faith fulfillment of the nation’s international legal obligations.81 By contrast, the latest decisions not only place the United States in unjustifiable breach of international undertakings, but also do so in a dismissive tone belying the Court’s protestation of giving “respectful consideration” to an international tribunal empowered to rule authoritatively on the treaties in question. Even though the United States has terminated its acceptance of the particular jurisdictional instrument involved in this series of ICJ cases, it remains a “repeat player” at the ICJ and may be sued there again under any of approximately seventy treaties that are still in force for the United States. The evident discontinuity with the Supreme Court’s previous “respectful” treatment of international tribunals is thus to be regretted. Arguably, Medellin and Sanchez-Llamas presented a more direct challenge to the Court’s own authority than any other precedents surveyed here. On previous occasions when the Court decided legal questions concerning international dispute settlement, it was not being asked to give direct effect in U.S. law to a ruling of an international tribunal, thereby changing the otherwise applicable rule of decision. Recent scholarly commentary has addressed various constitutional issues that might arise in the context of delegation of U.S. governmental powers to an international body (judicial or otherwise).82 It is not necessary to engage those debates here, as the Court did not enter 77

78 79 80 81

82

Id. at 415–18. See Brannon P. Denning & Michael D. Ramsey, American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs, 46 Wm. & Mary L. Rev. 825 (2004). Garamendi was decided by 5–4 vote over a strong dissent; the Court’s personnel changed between that decision and the decisions in Medellin and Sanchez-Llamas. The President argued in Medellin that an ICJ judgment is not privately enforceable (Brief for the United States as Amicus Curiae Supporting Petitioner (June 28, 2007), at 27–29) and that only the presidential decision to comply should be given effect. These arguments may have been aimed at convincing the new members of the Court to leverage Garamendi in the direction of more executive power. Given Medellin’s rejection of the presidential power arguments, it is unclear whether Garamendi’s deference to executive policy survives as precedent. 530 U.S. 363 (2000). Id. at 373–80. See id. at 383 (discussing the WTO complaint). While the earlier cases involved arbitral dispositions in favor of the United States or U.S. claimants, it would be incorrect to think that the Court’s sensitivity to U.S. interests in international dispute settlement depends on a U.S. “winner.” As regards the Iran-U.S. Claims Tribunal, for example, the Court’s upholding of the arbitration agreement did not presuppose that U.S. parties would prevail in arbitration. Tribunal awards against U.S. parties have been enforced pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. While Professor Stephan’s chapter in this volume argues that the Court since 1945 has been reluctant to enforce treaty obligations against the United States itself, see Chapter 10, pp. 321–31, this generalization would not apply to enforcement against the States before the cases considered in this essay. See, e.g., Edward T. Swaine, The Constitutionality of International Delegations, 104 Colum. L. Rev. 1492 (2004); see also Symposium on the Law and Politics of International Delegation, 71 L. & Contemp. Prob. 1 (2008).

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into them explicitly. Had it done so, it could have profited from Professor Monaghan’s recent study demonstrating the sound historical pedigree of supranational adjudication affecting rights of litigants in U.S. courts and concluding that “such a dispute resolution framework does not contravene the essential attributes of the judicial power as they have been historically understood.”83 It is worth noting that nothing in the Court’s analysis suggests any constitutional impediment to a legislative determination that judgments of an international tribunal should be given effect as federal law. Indeed, the Medellin Court assumed that Congress could implement Article 94 of the UN Charter by legislation providing for enforcement of ICJ judgments,84 and it raised no hint of any constitutional problem should Congress choose to do so in the future.

IV. Conclusion: From John Jay to John Roberts The history of international law in the Supreme Court correlates in significant measure to the place in history of those who have led the Court – some of whom also played significant historical roles in negotiating peaceful relations with foreign partners, devising mechanisms for pacific settlement of international disputes, serving in a legal or judicial capacity within such international systems, and working to ensure that the United States would fulfill its international obligations. How jurists informed by such life experiences might have analyzed the issues in Medellin is ultimately unknowable, but the historical record allows room for speculative inference that they would not have been indifferent to the resonance of their rhetorical choices in the other chambers where decisions bearing on U.S. compliance with international law would be taken in the future. Turning Chief Justice Jay’s commitments upside down, the Vienna Convention cases tell state authorities that treaty compliance may be an optional political act rather than a constitutional duty. Since Medellin instructed that remedies for treaty violations are generally political, rather than judicial, lower courts have been taking that message at face value and declining to exercise their remedial competences in treaty cases.85 The federal executive branch has been informed that unsuccessful executive litigating positions in international tribunals deserve more weight than executive determinations that the national interest favors compliance with internationally binding judgments. Congress has been told that the power to implement treaties lies largely in its hands, but no time was afforded for the legislative action that the Court held to be required to avoid an irreparable breach of an international obligation. Mexico and other treaty partners could only understand that the United States had failed for domestic legal reasons to carry out an indisputable international legal obligation. As Jay warned in Federalist No. 64, such nations could hardly expect to bind themselves to a bargain that the United States failed to fulfill. And international tribunals – before which the United States will surely be litigating in the future – will inevitably be concerned for good faith compliance with U.S. obligations arising in those systems. Thus has the Roberts Court launched the next phase in the history of international law. 83 84 85

Monaghan, supra note 63, at 833. 552 U.S. at 521–22, 529–30. E.g., McKesson Corp. v. Islamic Republic of Iran, 539 F.3d 485 (D.C. Cir. 2008).

Response Essay The Benefits of Avoiding Conflicts between the Constitution and International Law Julian Ku∗

Professor Lori Damrosch’s essay on the Supreme Court decisions in Medellin v. Texas1 and Sanchez-Llamas v. Oregon2 offers a careful and measured critique with a discouraging assessment of their future implications. In her view, the Medellin/Sanchez-Llamas opinions represent a “discontinuity” with the “Supreme Court’s previous respectful treatment of international tribunals.”3 To make matters worse, the results in Medellin and Sanchez-Llamas create tension with historically accepted doctrines guaranteeing federal supremacy for treaty violations, presuming congressional intent to comply with international obligations, and providing judicial remedies for treaty violations. Thus, she strongly suggests that the Court is rejecting at least the spirit of past U.S. historical practice, if not the letter of U.S. law. In this brief comment, I take issue with Professor Damrosch’s critique of Medellin and Sanchez-Llamas. I maintain that her emphasis on doctrines favoring U.S. compliance with international law overlooks an equally strong tradition of U.S. adherence to constitutional norms over international ones. Seen in this broader historical context, the Court’s decisions in Medellin and Sanchez-Llamas seem much less “discontinuous” than Professor Damrosch suggests. Because the decisions of the International Court of Justice (ICJ) in the Vienna Convention cases posed a serious and unprecedented constitutional challenge to the U.S. Supreme Court’s authority and to the U.S. system of federalism, the Court’s decisions fall within the long and honorable tradition of avoiding direct conflicts between constitutional requirements and international obligations.

I. The Tradition of Constitutional Supremacy over International Law Drawing on the excellent and illuminating chapters in this volume on the Supreme Court’s treaty decisions, Professor Damrosch identifies three longstanding U.S. treaty law doctrines that could have (and in her view should have) supported a different result in Medellin and Sanchez-Llamas. First, the U.S. Supreme Court and the federal courts ∗ 1 2 3

Professor of Law, Hofstra University School of Law. 552 U.S. 491 (2008). 548 U.S. 331 (2006). Lori F. Damrosch, Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts, supra p. 463.

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in general have long upheld the supremacy of treaty obligations over state law. Second, the Court has, from early in its history, endorsed a rule of statutory construction that presumes congressional intent to comply with international law. Third, the Court has also consistently (at least in its early years) interpreted treaties to provide judicial remedies for individuals affected by treaty violations. The combination of these three doctrines, Professor Damrosch suggests, provides the framework for an active and important judicial role in the implementation and enforcement of U.S. treaty obligations. While I agree that these doctrines are important, they do not completely describe the U.S. approach to international engagements. Running parallel to the internationalist flavor of the doctrines Professor Damrosch identifies is a consistent U.S. practice of maintaining the supremacy of constitutional norms over international ones. In this section, I describe two constitutional limitations on U.S. international engagement that have been recognized and endorsed by U.S. political and legal actors: federalism and Article III’s exclusive delegation of the judicial power to federal courts.

A. Federalism International relations have often raised challenges for the U.S. system of federalism, which divides sovereignty between the federal and state governments. This system of “dual sovereignty” does not disappear at the water’s edge. In fact, the problem of federalism has periodically troubled U.S. treaty-makers since at least the nineteenth century. During the first half of the nineteenth century, U.S. treaty-makers avoided certain treaties because of constitutional concerns about the federal government’s power to interfere with state regulation of real property.4 U.S. treaty-makers often dealt with these constitutional concerns by limiting U.S. treaty obligations. For instance, an 1853 treaty with France granted property rights to French subjects “in all States of the Union, whose existing laws permit it.” The treaty went on: “As to the States of the Union, by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this right.”5 Such views were often passed on to prospective foreign treaty partners. Secretary of State William L. Marcy put off requests to enter into treaty negotiations by informing foreign diplomats that “it is not competent for the Government of the United States to interfere with the legislation of the respective States in relation to the property of foreigners dying ab intestato or in regard to inheritances of any kind.”6 Although the Court subsequently limited the importance of such federalism concerns in Missouri v. Holland,7 the specter of collisions between international treaties and state governments’ autonomy has continued to manifest itself in contemporary treaty practice. Many treaties that affect state law have languished without Senate approval or have been 4

5

6 7

See Willard L. Boyd, Treaties Governing the Succession to Real Property by Aliens, 51 Mich. L. Rev. 1001, 1005 (1953). See also Julian G. Ku, The State of New York Does Exist, 82 N.C. L. Rev. 457, 492 n.179 (2004). Consular Convention, Feb. 23, 1853, U.S.-Fr., art. 7, 10 Stat. 992, 996. Other treaties contained similar provisions. See Treaty of Commerce, Friendship, Establishments, and Surrender of Criminals, Nov. 25, 1850, U.S.-Switz., art. 5, 11 Stat. 587, 590–91; Convention, Aug. 21, 1854, U.S.-Brunswick and Luneburg, art. 2, 11 Stat. 601, 602. See 4 John Bassett Moore, A Digest of International Law 37 (1906). 252 U.S. 416 (1920); see Chapter 6, pp. 199–200.

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approved by the Senate subject only to declarations of non-self-execution and federalism that operate to shield state law from being overridden by treaties. Such limitations were imposed, for example, on key treaties such as the International Covenant on Civil and Political Rights (ICCPR), thus making it difficult or impossible to challenge a state law for noncompliance.8 In other words, federalism remains today a meaningful concern and in some cases a serious limitation on U.S. compliance with its treaty obligations.

B. Article III Delegation Limitations The U.S. government has also invoked constitutional concerns when considering the depth of its relations with international organizations and tribunals. Rather than arising from federalism, these concerns are grounded in the U.S. Constitution’s separation of powers between the branches of the federal government. U.S. courts have long held that the powers of the federal government cannot be delegated in ways different from those required by the U.S. Constitution unless certain conditions are met. This “nondelegation” principle is most prominent in the context of the delegation of legislative power, but it also has been understood to limit delegations of executive and judicial powers.9 For instance, it has guided and at times restrained U.S. participation in international organizations to prevent delegating excessive power to that international organization. Responding to British proposals to create international tribunals to try slave traders in the mid-nineteenth century, U.S. Attorney General William Wirt invoked the nondelegation principle as a constitutional impediment to any U.S. involvement.10 Similarly, in the early twentieth century U.S. negotiators warned other nations’ representatives during the creation of the International Labour Organization that [t]he Senate has, under the Constitution, the power and the duty of giving its advice and consent in the matter of treaties. To permit a foreign body to conclude a treaty binding upon the United States would be equivalent to delegating the power of making treaties in the measure of the provisions of the treaty in question.11

U.S. negotiators have also invoked Article III of the U.S. Constitution as a constitutional limitation on delegations. In this view, Article III is an exclusive delegation of federal judicial power. Attempts to delegate this judicial power to international tribunals would run afoul of this requirement. As Professor Eugene Kontorovich has described, the U.S. government offered numerous constitutional objections to British efforts to create international slave trade tribunals during the first part of the nineteenth century. Luminaries like John Quincy Adams argued against the constitutionality of delegating the “judicial power” to international slave trade tribunals because such tribunals did not 8

9 10 11

U.S. Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 102nd Cong., 138 Cong. Rec. S4781, S4784 (daily ed. Apr. 2, 1992). For a longer discussion of executive practice in federalism, see Duncan Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 So. Cal. L. Rev. 1327, 1388 (2006). For a succinct statement of this principle as applied to all three branches, see Chief Justice Taft’s opinion in J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928). Eugene Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals, 158 U. Pa. L. Rev. 39, 64 (2009). Pitman B. Potter, Inhibitions on the Treaty-Making Power of the United States, 28 Am. J. Int’l L. 456, 456 (1934).

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comply with Article III. For instance, the slave trade tribunals would not be staffed by U.S. judges with lifetime tenure, nor would appeals from these courts go to U.S. appellate courts or the U.S. Supreme Court. All of this, as well as potential violations of the Bill of Rights’ guarantee of trial by jury, posed serious and potentially insurmountable constitutional obstacles to U.S. involvement.12

C. The Supremacy of the Constitution over International Law It should be noted that some, although not all, of the constitutional objections identified here are unlikely to trouble decision makers today. For my purposes, these examples serve to establish the basic principle of constitutional supremacy over international law rather than the merits of any particular constitutional argument. None of the positions taken by the U.S. executive branch makes any sense unless the Constitution acts as a restraint on international activities and overrides any subsequent inconsistent international obligations. Hence, in the context of federalism, the objections by U.S. negotiators assumed that some treaty obligations would be unenforceable if they intruded on exclusive state powers. This principle was well accepted but rarely discussed by the Supreme Court. The Court’s only explicit analysis of it occurred in the 1957 decision Reid v. Covert, in which a plurality stated that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”13 In that case, the Court held that U.S. citizens arrested abroad could not be tried by U.S. military courts without a jury as guaranteed by the Sixth Amendment. Executive agreements authorizing such nonjury trials could not override or circumvent constitutional protections. Although it has never been further developed by the Court, scholars generally agree that this principle is deeply embedded in U.S. law.14 It is worth pausing to consider why the Court has rarely invalidated a treaty or international obligation on constitutional grounds. It may be that, as Professor Damrosch and other contributors to this volume indicate, the Court has preferred to find ways to enforce treaty obligations. While true in part, I believe this observation leaves out an important explanation for the lack of constitutional challenges to international agreements. Because of the growing importance of the non-self-execution doctrine in the late twentieth century,15 many constitutionally suspect treaties are not cognizable in federal court.16 In other words, the non-self-execution doctrine has freed courts from considering constitutional challenges to treaties and has bounced that duty back to the political branches. It is this desire to avoid constitutional conflict, I believe, that both explains and justifies the Court’s approach in Medellin and Sanchez-Llamas and places it in a much 12 13 14 15 16

Kontorovich, supra note 10, at 74–82. Reid v. Covert, 354 U.S. 1, 16 (1957). See Peter J. Spiro, Treaties, International Law, and Constitutional Rights, 55 Stan. L. Rev. 1999 (2003). See Chapter 10, pp. 323–24. For instance, when ratifying the International Covenant on Civil and Political Rights, the United States attached a declaration specifying that Articles 1 through 27 of the Covenant are not self-executing. See U.S. Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 102nd Cong., 138 Cong. Rec. S4781, S4784 (daily ed. Apr. 2, 1992). This declaration precludes plaintiffs from raising claims based on the Covenant and thereby deprives courts of the opportunity to rule on its constitutionality.


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less “discontinuous” position with the broader trends in the development of U.S. treaty law.

II. Medellin and Sanchez-Llamas – Dodging Constitutional Conflict Medellin and Sanchez-Llamas presented the Supreme Court with potential conflicts between treaty obligations and constitutional requirements. In both cases, the Court avoided opining on the constitutional problem through interpretive strategies that returned key decisions to the political branches. Sanchez-Llamas asked the Court to adopt an interpretation of the Vienna Convention on Consular Relations (VCCR) that was in tension with its previous decision in Breard v. Greene.17 One of the main arguments was an intervening ICJ decision, known as Avena, interpreting the same VCCR provision.18 According to a brief submitted by a group of experts on the ICJ, because the ICJ had “compulsory jurisdiction” over disputes between certain parties under the VCCR (and because the United States was one of those parties), the United States, and all of its constituent organs, was “bound” to adopt the ICJ’s interpretation of the treaty.19 As Professor Damrosch notes, it would not have been difficult for the Court to cite doctrines preferring interpretations that comply with international law and that permit judicial protection against treaty violations as a basis for adopting the ICJ’s interpretation. However, the Court did not follow this approach. Rather, citing Marbury v. Madison, the Court declared that “[i]f treaties are to be given effect as federal law, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court.’”20 It then interpreted the ICJ’s authority over the VCCR in a limited way, emphasizing that nothing in the relevant treaties indicated that the ICJ’s decisions were meant to be binding in U.S. or international law with respect to individuals whose claims were not themselves subjects of the ICJ decision.21 The Court’s emphasis echoes some of John Quincy Adams’s objections to the British slave trade tribunals. Reading the VCCR and the ICJ Statute to bind the U.S. Supreme Court to follow ICJ interpretations threatened Article III’s “one supreme Court” requirement because it would subordinate the Supreme Court’s interpretation of U.S. law to the ICJ’s interpretation. In such a circumstance, the Supreme Court would no longer be the supreme and final arbiter of the meaning of U.S. law as Article III required. The Court’s interpretations of the relevant treaties avoided this constitutional danger, even though its interpretations arguably departed from the broader judicial tradition of enforcing U.S. treaty obligations. 17 18 19

20 21

523 U.S. 371 (1998). Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31). Brief of International Court of Justice Experts As Amici Curiae in Support of Petitioners 11, SanchezLlamas v. Oregon (December 22, 2005) (“Thus, once having given consent to both the Vienna Convention and the designated forum for dispute settlement, the United States is obligated to comply with the Convention, as interpreted by the ICJ.”) Professor Damrosch was counsel of record on this brief. Sanchez-Llamas, 548 U.S. at 354. For an academic defense of the Medellin and Sanchez-Llamas decisions along similar lines, see Ernest A. Young, Treaties as “Part of Our Law,” 88 Tex. L. Rev. 91 (2009). See also Mark L. Movsesian, Judging International Judgments, 48 Va. J. Int’l L. 65 (2007) (examining and ultimately agreeing with the Court’s result in Sanchez-Llamas).

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The constitutional questions became even more dramatic in Medellin. In SanchezLlamas, the Court avoided direct confrontation with the ICJ because the ICJ’s interpretation of the VCCR was not binding with respect to the petitioners in that case. Thus the Court could disagree with the ICJ’s interpretation without directly challenging the ICJ judgment. Medellin, in contrast, involved a defendant who had been one of the subjects of the ICJ’s Avena judgment and was covered by name in the ICJ’s order obligating the United States to provide review of his sentence. Hence, the Sanchez-Llamas strategy of respectfully disagreeing with the ICJ’s interpretation of the VCCR was no longer available. This made the constitutional challenge in Medellin even more acute. As the Court described its constitutional discomfort, [T]he consequences of Medell´ın’s argument give pause. An ICJ judgment, the argument goes, is not only binding domestic law but is also unassailable. As a result, neither Texas nor this Court may look behind a judgment and quarrel with its reasoning or result. (We already know, from Sanchez-Llamas, that this Court disagrees with both the reasoning and result in Avena.) Medell´ın’s interpretation would allow ICJ judgments to override otherwise binding state law; there is nothing in his logic that would exempt contrary federal law from the same fate. . . . And there is nothing to prevent the ICJ from ordering state courts to annul criminal convictions and sentences, for any reason deemed sufficient by the ICJ. Indeed, that is precisely the relief Mexico requested.22

In the Court’s view, if it had accepted Medell´ın’s reading of the relevant treaties, the ICJ would essentially be given final authority to override inconsistent state and federal law, even though the U.S. Supreme Court had disagreed with its interpretation. This potential challenge to Article III was elided by the Court’s decision to read the treaties binding the United States to apply ICJ decisions to be non-self-executing. This reading conveniently avoided the constitutional question and placed the duty of complying with the international obligations on Congress or on Texas itself. The Court’s invocation of the non-self-execution doctrine here was sharply criticized by the dissent. Not only was the language of the relevant treaties somewhat ambiguous but the dissent also suggested that the majority had failed to consider the long tradition of judicial support for carrying out international obligations. Foreshadowing Professor Damrosch, the dissent complained that the majority’s decision would undermine U.S. efforts to join international agreements and to build enforceable systems of international dispute settlement.23 Seen in this light, the majority opinion does seem out of line with U.S. traditions. But understood as a careful avoidance of a real and difficult constitutional problem, the majority decision in Medellin reflects a wise and prudent approach to treaty interpretation. Enforcing international obligations is an important duty of the Court, but one that is subordinate to its duty to ensure compliance with the Constitution.

III. Conclusion As the United States increasingly faces invitations to join ever more complex and domestically intrusive international regimes, the likelihood of constitutional conflicts increases. 22 23

Medellin v. Texas, 552 U.S. 491, 518 (2008). Id. at 565 (Breyer, J., dissenting).


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Rather than pretending these conflicts do not exist, the Supreme Court in Medellin and Sanchez-Llamas sought interpretive strategies to avoid uncomfortable constitutional questions. Such constitutional prudence has, as I have suggested, a long and honorable tradition in U.S. government practice. It will likely serve the Court well in the future.

Response Essay Medellin and the Passive Vices David L. Sloss∗

In a thoughtful and insightful essay, Professor Lori Damrosch contends that the Supreme Court decisions in Medellin v. Texas1 and Sanchez-Llamas v. Oregon2 represent a significant departure from earlier precedents.3 I largely agree with Professor Damrosch’s analysis. However, I contend that Medellin is a more radical departure from precedent than commentators have previously acknowledged. Medellin is fundamentally at odds with a traditional understanding of procedural due process whose roots can be traced to the Magna Carta. According to the traditional view, when the state threatens to impose criminal sanctions on someone, and that person alleges that the threatened sanction is unlawful, a judicial hearing on the merits of the argument is required, provided the argument is raised at the first available opportunity in accordance with established procedural rules. Medell´ın argued that Texas threatened to subject him to an unlawful criminal sanction. He raised that argument at the first opportunity in accordance with Texas procedural law. Even so, Texas executed him without providing a judicial hearing on the merits of his argument. In Medellin, the Court endorsed this violation of the petitioner’s procedural due process rights. Medellin is best understood as an outgrowth of the Court’s embrace of “the passive virtues,” in Alexander Bickel’s apt phrase.4 The main lesson of Medellin is that unbridled enthusiasm for judicial passivity blinded the Court to what Gerald Gunther called “the subtle vices of the passive virtues.”5 In this essay, the term “judicial passivity” refers to a court’s refusal to decide the merits of a claim or to provide a remedy for the victim of a violation. Judicial passivity can be virtuous or vicious, depending on the context. The first part of this essay elaborates key contextual factors that help determine whether judicial passivity is likely to be virtuous or vicious in a particular case. The second part ∗ 1 2 3 4 5

Professor of Law and Director, Center for Global Law and Policy, Santa Clara University School of Law. 552 U.S. 491 (2008). 548 U.S. 331 (2006). Lori F. Damrosch, Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts, supra pp. 451–64. See Alexander M. Bickel, The Supreme Court, 1960 Term – Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961). See Gerald Gunther, The Subtle Vices of the “Passive Virtues” – A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1 (1964).

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demonstrates that Medellin, unlike Sanchez-Llamas, falls into a narrow category of cases where judicial passivity is wholly nonvirtuous.

I. The Virtues and Vices of Judicial Passivity In evaluating context, three distinctions are critical: public versus private litigation, prospective versus retrospective relief, and civil versus criminal proceedings. The first key distinction is between litigation among private parties and litigation pitting private parties against government actors. Because Medellin and Sanchez-Llamas both involve government actors, this essay focuses exclusively on the merits of judicial passivity in public litigation. The second critical distinction is between civil and criminal cases. The Constitution’s Framers recognized that state power is at its apex when the state threatens individuals with criminal sanctions.6 Accordingly, the Constitution includes several provisions specifically designed to protect criminal defendants “from the awesome power of the State.”7 The need for robust judicial review of government action is greater in criminal cases precisely because judicial review is necessary to protect individual criminal defendants from the state’s “awesome power.” Therefore, when a criminal defendant and/or habeas petitioner argues that the state is threatening to impose illegal criminal sanctions, courts have a constitutional responsibility to evaluate the merits of that argument.8 When a court invokes judicial passivity as a rationale for refusing to decide whether threatened criminal sanctions are illegal, the court potentially allows the government to violate the law in the very process of imposing criminal punishment. The third critical distinction is between retrospective relief for past violations and prospective relief to avoid future violations. The Court has elaborated this distinction most clearly in cases involving civil suits against government officers. The doctrine of state sovereign immunity generally bars civil suits for retrospective relief against state governments.9 Similarly, the doctrine of official immunity creates procedural hurdles for civil plaintiffs who seek retrospective relief against state government officers.10 In contrast, when civil plaintiffs seek prospective relief against state government officers, the doctrine of Ex parte Young generally removes immunity as a barrier to suit.11 The Court has relied explicitly on the distinction between prospective and retrospective relief to define the contours of the Young doctrine.12 The Court’s relatively passive approach to retrospective claims – its reliance on immunity doctrines to avoid ruling on the merits of such claims – reflects a prudential judgment that judicial second-guessing of past decisions by state government officers is problematic, even when those officers have violated federal law. In contrast, the Court’s relatively 6 7

8 9 10 11 12

See, e.g., The Federalist No. 83, at 464–73 (Alexander Hamilton) (Isaac Kramnick ed., 1987). Johnson v. Louisiana, 406 U.S. 399, 399–400 (1972) (Marshall, J., dissenting); see, e.g., U.S. Const. amend. VI (providing right to counsel for criminal defendants); U.S. Const. amend. VIII (prohibiting cruel and unusual punishment). See David Sloss, The Constitutional Right to a Treaty Preemption Defense, 40 U. Toledo L. Rev. 971 (2009). See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). See Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts and the Federal System 1112–34 (5th ed. 2003). See id. at 987–1000. See Edelman v. Jordan, 415 U.S. 651 (1974).

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active approach to prospective claims reflects a judgment that, in a society committed to rule-of-law values, a court should not invoke judicial passivity to permit government officers to engage in illegal conduct if the court has the power to enjoin that conduct. In short, factors that support judicial passivity in the context of retrospective relief are outweighed by one dominant factor that supports judicial intervention to prevent future violations: if a court fails to enjoin illegal government action, the court becomes complicit in violating the law.13 The distinction between retrospective and prospective relief also shapes federal statutes governing the civil liability of federal officers. The doctrine of federal sovereign immunity bars civil suits against the federal government, unless the government has waived its immunity.14 Congress has enacted two statutes that waive sovereign immunity for non-constitutional tort claims against federal officers. The Federal Tort Claims Act (FTCA) waives sovereign immunity for civil plaintiffs who seek retrospective relief for past violations.15 The Administrative Procedure Act (APA) waives sovereign immunity for civil plaintiffs who seek prospective relief to prevent future violations.16 Whereas the FTCA includes numerous policy-based exceptions that limit the availability of retrospective relief,17 the APA includes a smaller set of narrower exceptions that impose fewer barriers for plaintiffs who seek prospective relief.18 Thus, Congress apparently shares the Court’s view that – when it comes to civil liability against government officers – rule-of-law values favor more robust judicial intervention in cases where plaintiffs seek prospective relief. The distinction between prospective and retrospective relief also shapes criminal procedure doctrines, at least implicitly. The exclusionary rule provides a retrospective remedy for completed violations. Over the past few decades, the Court has crafted several restrictions that limit application of the exclusionary rule as a remedy for Fourth and Fifth Amendment violations.19 Prisoners who allege violations of their Sixth Amendment rights also seek retrospective relief for completed violations. Here, too, the Court has shaped judicial doctrine to create numerous hurdles for ineffective assistance of counsel claims.20 Judicial limitations on the exclusionary rule and Sixth Amendment claims manifest a view that – in criminal cases, as in civil cases – when litigants seek retrospective relief for completed violations the virtues of judicial passivity often outweigh the vices. In contrast, there are few established doctrines that courts invoke to avoid deciding the merits of cases where criminal defendants seek prospective relief to bar imposition of unlawful criminal sanctions. When individuals raise Eighth Amendment defenses to bar future punishment, courts invariably decide those claims on the merits because it would be unconscionable to invoke judicial passivity as a rationale for permitting the state to impose cruel and unusual punishment. Doctrines of waiver or procedural default may bar Eighth Amendment defenses that defendants fail to raise at the first available 13 14 15 16 17 18 19 20

See David Sloss, Ex parte Young and Federal Remedies for Human Rights Treaty Violations, 75 Wash. L. Rev. 1103, 1172–74 (2000). See Hart & Wechsler, supra note 10, at 944–60. See 28 U.S.C. §§ 2671–2680. See 5 U.S.C. §§ 701–06. See 28 U.S.C. §§ 2680(a)-2680(n). See 5 U.S.C. §§ 701(a)(2), 701(b)(1)(F–H). See Wayne R. LaFave et al., Criminal Procedure chs. 3, 6, 9, & 10 (5th ed. 2009). See id., ch. 11.


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opportunity. But, prior to Medellin, cases where defendants raised their claims too late or failed to comply with procedural rules were the only cases where the Court refused to decide the merits of a defendant’s argument that the government threatened future harm in the form of unlawful penal sanctions. Thus, Medellin is truly an anomaly: it appears to be the only case in two centuries of Supreme Court history where a criminal defendant scrupulously followed the relevant procedural rules, raised his defense at the first available opportunity, sought prospective relief to avoid an unlawful penal sanction, and the Court – despite admittedly having jurisdiction over the claim – invoked judicial passivity as a rationale for refusing to decide the claim on the merits.21

II. Judicial Passivity in Medellin The distinction between prospective and retrospective relief should inform any analysis of the virtues of judicial passivity in Medellin and Sanchez-Llamas. Sanchez-Llamas involved two consolidated cases.22 Sánchez-Llamas sought retrospective relief for a completed violation of Article 36(1) of the Vienna Convention on Consular Relations (VCCR).23 The Court acknowledged the violation, but adopted a passive approach by ruling that he was not entitled to a remedy.24 In contrast, Bustillo sought prospective relief for an ongoing violation of Article 36(2).25 The Court adopted an active approach to Article 36(2): it ruled on the merits that there was no violation.26 Thus, Sanchez-Llamas supports the broader point that the Court generally adopts a more active approach to claims for prospective relief. In contrast to Sanchez-Llamas, the petitioner in Medellin sought prospective relief to avoid a future violation of Article 94 of the UN Charter. To appreciate this point, it is necessary to recount the procedural history of Medellin. Medell´ın was a Mexican national convicted of murder and sentenced to death in Texas state court.27 Texas officials violated the VCCR by failing to advise him of his right to consult with a consular officer. After an unsuccessful appeal, Medell´ın filed his first state habeas petition, raising a claim under Article 36. The state trial court denied that petition, and the Texas Court of Criminal Appeals affirmed.28 Medell´ın then sought federal habeas relief. While his habeas petition was pending, Mexico brought a claim against the United States in the International Court of Justice 21 22 23

24 25

26 27 28

This essay is concerned exclusively with cases where the Court has jurisdiction; absent jurisdiction, it cannot decide claims on the merits. 548 U.S. 331 (2006). See Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR]. Article 36(1) obligates the United States to inform a detained foreign national “without delay” of his right to consult with a consular officer. The United States’ violation of this provision was completed long before the defendants were convicted. See Sanchez-Llamas, 548 U.S. at 343–50. Bustillo raised a retrospective claim under Article 36(1), but his primary claim related to Article 36(2). As interpreted by the ICJ, Article 36(2) required the United States to provide individuals a remedy for the prior violation of Article 36(1). Under that interpretation, the violation of Article 36(2) was ongoing until the Supreme Court decided that petitioners were not entitled to a remedy. See Sanchez-Llamas, 548 U.S. at 351–60. See Ex parte Medellin, 223 S.W.3d 315, 321 (Tex. Crim. App. 2006). Id. at 321–22.

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(ICJ) on behalf of Medell´ın and other Mexican nationals (the Avena case).29 The ICJ issued its Avena judgment in March 2004: it ordered the United States to provide judicial hearings for fifty-one of the fifty-four Mexican nationals, including Medell´ın, to ascertain whether they were prejudiced by violations of VCCR Article 36.30 The ICJ’s order can be expressed as a prohibition – “do not execute the Mexican nationals without first providing them a judicial hearing.”31 Under Article 94 of the United Nations Charter, the United States has a treaty obligation to comply with that prohibition.32 After the ICJ decision, Medell´ın filed a second habeas petition in Texas state court, urging Texas not to execute him without first providing the judicial hearing Avena required. The Texas Court of Criminal Appeals denied that petition in November 2006;33 the U.S. Supreme Court affirmed the Texas court’s decision in March 2008.34 Texas subsequently executed Medell´ın in August 2008. Four points merit emphasis: 1) Medell´ın sought prospective relief; 2) he raised his claim at the first available opportunity; 3) he complied with state procedural rules; and 4) the Texas court never ruled on the merits of his claim. Because Article 94 created an obligation not to execute Medell´ın without first providing a judicial hearing, the United States’ violation of Article 94 was not complete until Texas executed him in August 2008. Thus, at the time of the Supreme Court decision in March 2008, Medell´ın was seeking prospective relief to prevent a future violation. Second, Medell´ın filed his second state habeas petition in 2005. In that petition, he raised a claim based on the Avena judgment and Article 94 of the UN Charter. He could not have raised that claim when he filed his first habeas petition in 1998 because the ICJ did not decide Avena until 2004. The Texas court conceded that Medell´ın’s Article 94 claim was unavailable in 1998.35 Thus, he raised his claim at the first available opportunity. Third, section 5(a)(1) of the Texas Code of Criminal Procedure permits convicted prisoners to file a second habeas petition in cases where “the current claims and issues . . . could not have been presented previously in a timely initial application . . . because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.”36 Article 94 of the UN Charter and Avena constituted the “legal basis for the claim” presented in Medell´ın’s second habeas petition. That legal basis was “unavailable” in 1998, when he filed his first habeas petition, because Article 94 did not become applicable to Medell´ın’s case until the ICJ decided Avena in March 2004. Thus, Texas procedural law explicitly authorized Medell´ın’s petition, and he presented that petition in accordance with state procedural rules.37 Fourth, Medell´ın argued that Texas would violate supreme federal law if it executed him without first providing the judicial hearing required by Avena because: (1) Avena 29 30 31 32 33 34 35 36 37

Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31) [hereinafter Avena]. See id. ¶¶ 128–41, 153. See id. UN Charter, art. 94. Ex parte Medellin, 223 S.W.3d 315 (Tex. Crim. App. 2006). Medellin v. Texas, 552 U.S. 491 (2008). See Medellin, 223 S.W.3d at 352. Tex. Code Crim. Pro, art. 11.071, § 5(a)(1) (emphasis added). Medell´ın’s claim differed from Bustillo’s in this respect. Whereas Texas law authorized Medell´ın to raise his claim in a second habeas petition, Bustillo’s claim was barred by state procedural default rules. See Sanchez-Llamas, 548 U.S. 331, 341–42 (2006).


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means that the United States must provide a judicial hearing before implementing the death sentence; (2) Article 94 creates a treaty obligation for the United States to comply with Avena; and (3) that treaty obligation has the status of supreme federal law under the Supremacy Clause.38 The Texas Court of Criminal Appeals tacitly conceded the first two points, but it never addressed the third point. Instead, the Texas court held that it was free to disregard the Avena judgment because Avena is “not binding law.”39 Thus, the Texas court never addressed the merits of Medell´ın’s argument that his execution was unlawful. The Supreme Court affirmed on the ground that Article 94 and Avena are “not selfexecuting.”40 The Court’s non-self-execution holding is ambiguous. Under one view, that holding means that Article 94 is not supreme federal law under the Supremacy Clause.41 Under this interpretation, the Supreme Court decided the merits of Medell´ın’s argument: it decided that Medell´ın’s execution did not violate supreme federal law because Article 94 is not supreme federal law. Under this interpretation, the Court’s holding is patently inconsistent with the plain meaning of the Constitution’s text. An alternative interpretation seeks to reconcile Medellin with the text of the Supremacy Clause.42 Under this view, Article 94 is supreme federal law – hence, Texas violated supreme federal law by executing Medell´ın – but the Court’s non-self-execution holding means that Texas courts were not obligated to address the merits of Medell´ın’s argument. Thus, non-self-execution is a special type of judicial passivity rationale that permits courts to duck the merits of claims raised by prisoners who allege that the State is threatening to subject them to unlawful criminal sanctions.43 Unfortunately, under this interpretation, the Court violated Medell´ın’s procedural due process rights by refusing to decide the merits of his claim. It is well established that “a State must afford all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause.”44 Writing for the Court in 1876, Justice Stephen Field expressed the principle as follows: Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court 38

39

40 41 42 43

44

See U.S. Const. art. VI, cl. 2 (specifying that “all Treaties” are “the supreme Law of the Land” and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Ex parte Medellin, 223 S.W.3d 315, 352 (Tex. Crim. App. 2006). The court’s holding that Avena is not “binding law” is correct in that ICJ decisions are not a category of supreme law referenced in the Supremacy Clause. However, treaties are a category referenced in the Supremacy Clause, the UN Charter is such a treaty, and the Texas court disregarded this point. Medellin v. Texas, 552 U.S. 491, 504–14 (2008). See David Sloss, United States, in The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (David Sloss ed., 2009). See Curtis A. Bradley, Self-Execution and Treaty Duality, 2008 Sup. Ct. Rev. 131. A third possible interpretation is that Medellin held that Congress is the only institution with the domestic legal authority to implement Art. 94. I have argued that the only treaty provisions in this category are provisions obligating the United States to take steps within the scope of Congress’s exclusive legislative authority under Article I of the Constitution. See David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 45–70 (2002). No one maintains that Article I grants Congress the exclusive authority to provide judicial hearings for convicted prisoners. Boddie v. Connecticut, 401 U.S. 371, 379 (1971).

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pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.45

Writing for a unanimous Court in 1897, Justice Edward White traced the evolution of this principle from Roman law and the Magna Carta through Blackstone and Coke.46 He also cited Justice Joseph Story’s treatise on the Constitution, several nineteenth-century Supreme Court decisions, and numerous English court decisions.47 These authorities demonstrate that, when an individual raises an argument that the state is threatening to subject him to unlawful criminal sanctions – and raises that argument at the first available opportunity in accordance with relevant procedural rules – the Due Process Clause requires the court to decide the merits of that argument.48 In sum, there are two possible interpretations of the Court’s non-self-execution holding in Medellin. Under one interpretation, the Court decided the case on the merits, ruling that Article 94 is not supreme federal law. If this view is correct, the Court cannot be accused of judicial passivity, but its decision conflicts with the plain meaning of the Constitution’s text. Alternatively, the non-self-execution holding is a special type of judicial passivity rationale that the Court employed to avoid ruling on the merits of Medell´ın’s claim. If this interpretation is correct, the Supreme Court violated the Due Process Clause because that Clause obligates the Court to decide the merits of claims raised by prisoners, like Medell´ın, who assert that the State is threatening to subject them to unlawful criminal sanctions. 45 46 47 48

Windsor v. McVeigh, 93 U.S. 274, 277 (1876). See Hovey v. Elliott, 167 U.S. 409, 415–16 (1897). Id. at 414–44. See Sloss, supra note 9.

V.B

Customary International Law after 2000

Main Essay Sosa and the Derivation of Customary International Law John O. McGinnis∗

My charge in this brief essay is to assess the implications of the recent U.S. Supreme Court decision in Sosa v. Alvarez-Machain1 for customary international law in American jurisprudence. Sosa is in an important sense sui generis, because it involved customary international law in the context of the Alien Tort Statute (ATS), to which the Court gave substantial consideration for the first time.2 Nevertheless, if one is given a little latitude for extrapolation, it is interesting to analyze the Court’s statements for their broader resonance about the derivation of customary international law in American jurisprudence. After all, since making the Delphic declaration more than a century ago in The Paquete Habana that international law “is part of our law,”3 the Court has made few direct pronouncements on customary international law’s status or its method of derivation. Given the paucity of customary international law analysis in any context, Sosa’s explicit discussion of the transformation of common law since the Founding and its implicit recognition of changes in the nature of customary international law may well turn out to be of substantial importance for customary international law’s future within American law generally. Viewed at a high level of abstraction, Sosa represents an attempt to translate the status of customary international law in American jurisprudence from the Framers’ world to our own. In essence, this translation tries to make sure that our system receives only norms of comparable quality to those recognized in international law at the time of the Framing, with quality defined in terms of modern legal processes. Ultimately we want norms to have indicia of high quality if they are to bypass our usual domestic process of bicameralism and presentment that itself screens norms for quality. Internationally, customary international law has long had a mixture of positivist and natural law elements, perhaps because of its own peculiar nature as universal law that ∗

1 2

3

George C. Dix Professor, Northwestern Law School. I am grateful for the comments of David Bederman, Eugene Kontorovich, Mark Movsesian, and the editors of this volume. 542 U.S. 692 (2004). The Alien Tort Statute, 28 U.S.C. § 1350, originally enacted as part of the Judiciary Act of 1789, gives federal district courts jurisdiction over claims brought by “an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” For pre-Sosa developments regarding the ATS in the lower courts, see Chapter 11, pp. 366–75. 175 U.S. 677, 700 (1900).

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nevertheless emerges from particular political divisions of the world. Sosa, however, suggests that within contemporary U.S. jurisprudence customary international law must take on a distinctively positivist cast because of the U.S. system’s peculiar nature, in which the federal courts’ capacity to generate common law is circumscribed by our notions of democracy and our history of legal realism. This method of derivation occurs in the long shadow of Erie Railroad Co. v. Tompkins,4 the foundational modern case for understanding federal common law.5 Sosa thus suggests that the content of international law in American jurisprudence will be viewed through the imperatives of American jurisprudence, not simply those of international jurisprudence, making the domestic version of international law a parochial one. Because of these imperatives, only a subset of what may be norms in the international sphere will likely have domestic force in U.S. courts unless endorsed by the political branches. Sosa also offers a link between international and domestic positivism.6 Because domestic law cannot any longer be thought to be a “brooding omnipresence,” domestic positivism requires that a rule of decision must be connected to sovereign power. International positivism provides that connection by rooting the rule in the widespread acceptance of an international norm as legal obligation through the acts of many sovereigns.7 Thus, Sosa may represent a change paradoxically because it brings together two different elements of continuity – the search to reconcile international law with an increasingly positive approach to law and the search to reconcile domestic law with that approach as well. Part I of this essay briefly summarizes Sosa. Part II suggests that many of the rationales Sosa provides for constraining the derivation of customary international law in the context of the ATS would apply more generally to deriving the content of customary international law when used as a common law rule of decision or even as an aid to statutory construction. Part III suggests that Sosa takes an astringently positivist (in the international sense) view of customary international law under which very substantial evidence of actual state practice must support a norm defined with great specificity for the norm to qualify as customary international law in the context of American jurisprudence. Part IV concludes that while Sosa’s constraints do not fully answer modern critiques of the use of customary international law without express endorsement of the political branches, they mute these criticisms by suggesting a modest scope for the direct effect of customary international law norms. Indeed, Sosa offers a grand bargain: applicability of customary international law within American jurisprudence is traded for a constrained methodology of derivation and consequent exclusion of much controversial content. In that sense, I suggest, Sosa should not be seen merely as an ideological “Rorschach blot,”8 but as a decision that contains within it the seeds of ideological compromise.

I. The Case of Sosa v. Alvarez-Machain Sosa v. Alvarez-Machain arose from the U.S.-government-sponsored rendition of ´ ´ Dr. Alvarez-Macha´ ın from Mexico. The U.S. government indicted Alvarez for participating in the torture and murder of an agent of the U.S. Drug Enforcement Agency by 4 5 6 7 8

304 U.S. 64 (1938). On Erie, see Chapter 7, pp. 243–54. For discussion of the distinction, see id., p. 229, n. 19. For discussion and citations on this point, see infra p. 487. Ernest A. Young, Sosa and the Retail Incorporation of International Law, 120 Harv. L. Rev. F. 28, 28 (2007).

Sosa and the Derivation of Customary International Law

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´ a Mexican drug cartel. When the Mexican government failed to extradite Alvarez, the United States paid agents, including Sosa, to kidnap him in Mexico and bring him to ´ the United States. Alvarez was tried and acquitted of the federal charges. He then sued Sosa under the ATS, alleging that the kidnapping had violated customary international law against arbitrary detention. The Court opined that the ATS was jurisdictional in nature, but also that this jurisdiction enabled federal courts to hear a set of claims under international law.9 The Court further held that recognition of international law norms under the ATS was precluded with respect to claims “with less definite content and acceptance among civilized nations than the historical paradigms familiar”10 when the ATS was enacted. The Court then detailed a variety of reasons for great caution about hearing any but well-settled customary international law norms under the ATS. These reasons centered on both the transformation of the U.S. understanding of the common law since the time of the Framing and the deference due to the political branches in implying a cause of action.11 ´ ´ Applying this standard, the Court rejected Alvarez’s claims. Alvarez argued that Sosa had violated the international principle against arbitrary detention, which he defined as “officially sanctioned action exceeding positive authorization to detain under domestic ´ law.”12 But the Court emphasized that Alvarez’s unauthorized detention was relatively brief. It held that even if there were a general international law principle against arbitrary ´ detentions, to prevail Alvarez would need to supply evidence that it applied specifically 13 to brief detentions. The Court thus applied its rule that an international norm must be recognized at the level of specificity at which it would be invoked rather than inferred from principles that had been accepted at a higher level of abstraction.14 It considered domestic laws on the subject from around the world and could find no such specific ´ principle consistently recognized. The Court thus dismissed Alvarez’s ATS claim. Most of the commentary about Sosa has revolved around its implications for customary international law’s status in American jurisprudence. The essence of the standard academic view is that customary international law binds the States and in some circumstances binds the federal government,15 at least unless (as The Paquete Habana suggested) it is countermanded by a “controlling executive or legislative act.”16 The “revisionist” view is that customary international law binds domestically only when the political branches have acted within their spheres of authority to apply its norms domestically.17 In my view, despite the heroic attempts to enlist Sosa on either side, the case cannot be said to settle the dispute between the standard academic view and the revisionists. 9 10 11

12 13 14 15

16 17

Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). Id. at 732. Id. at 725–28. The Court also suggested another “possible limitation” to recognizing ATS claims: that it might give “case-specific deference” to executive statements that recognizing a claim would undermine U.S. foreign policy interests. Id. at 733 n.21. Id. at 736. Id. at 736–37. Id. For a vigorous restatement of the standard position, see Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997). The Paquete Habana, 175 U.S. 677, 700 (1900). For the classic statement of the revisionist position, see Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).

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As noted elsewhere in this volume, both the revisionist and standard accounts lead to doctrinal puzzles in the wider case law,18 and these puzzles remain after Sosa. Moreover, given Sosa’s rather confusing account of how the ATS gives rise to substantive norms, it is not clear that Sosa addresses the issue of how customary international law should be treated in the absence of any congressional expression of intent to apply it. Finally, it seems unlikely that an issue that divides the right and left blocs of the Court will be settled by a precedent that academics on each side have ably distinguished. In any event, given that this issue is exhaustively discussed elsewhere,19 I leave it to one side. Sosa, however, may provide a more enduring framework for federal courts’ derivation of customary international law. Whenever federal courts give customary international law status within American law without express definition by the political branches, federal courts must decide whether a norm that litigants proffer as customary international law will be applied. This methodological question has a practical bearing on the grander question of customary international law’s status. Insofar as customary international law is derived in a way that limits the potentially broad discretion of federal judges and other unelected actors to determine international law norms and instead reflects judgments that more closely approximate democratic ones, the less opposition there will be to giving customary international law some autonomous status in American jurisprudence. In contrast, an unconstrained method of deriving customary international law that empowers views of natural justice and elite discretion in choosing among them is likely to lead to pressure to adopt the revisionist position in which customary international law has no status without express adoption by the political branches.

II. The Scope of Sosa’s Customary International Law Concerns Customary international law has many potential applications in contexts other than the ATS. For instance, under some interpretations of The Paquete Habana,20 customary international law is “part of our law” and can furnish a common law rule of decision without any express authorization from the political branches.21 Under the venerable precedent of Murray v. Schooner Charming Betsy,22 customary international law can be used to interpret ambiguous or vague provisions of a statute.23 In such cases, the content of customary international law must first be derived. Thus, it is important to consider whether Sosa’s method for deriving the content of customary international law applies outside the context of the ATS. Two of the rationales that Sosa provides for constraining customary international law’s derivation in the ATS context apply to any use of customary international law as federal common law. The first cautionary rationale is the changing conception of common law, including the common law that is customary international law, from 18 19

20 21 22 23

See Chapter 7, pp. 243–54. Compare, e.g., William S. Dodge, Customary International Law and the Question of Legitimacy, 120 Harv. L. Rev. F. 19 (2007), with Curtis A. Bradley, Jack L. Goldsmith & David Moore, Sosa, Customary International Law and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869 (2007). 175 U.S. 677, 700 (1900). See John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175, 1188 (2007) (discussing The Paquete Habana). 6 U.S. 64 (1804). See McGinnis & Somin, supra note 21, at 1192 (discussing Charming Betsy).


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a “transcendental body of law” to one that is not so “much found or discovered” as it is “either made or created.”24 The second rationale is the related change in the conception of the federal courts’ role in generating common law.25 Sosa observed that, in general, federal courts are to await “legislative guidance” before making such law.26 Within American jurisprudence, common law (including customary international law) is no longer generally understood as the discovery of immanent principles. Thus, much greater attention has to be given to the process and institutions by which it is formulated. Given that federal courts are unelected, they need to defer to the democratic branches, democracy being the legitimating process for the creation of norms that implicate state power.27 Both of these rationales are applicable to the use of customary international law as common law even outside of the ATS context. Indeed, the second rationale applies a fortiori, because, whatever limited guidance the ATS provides, the legislative branches have not furnished any general statutory authority to the use of customary international law as a rule of decision outside of this context. A nice question is whether these rationales would apply to the derivation of customary international law for use in statutory construction under the Charming Betsy canon. Before using an international norm in construction, the federal court must first determine its content. This determination has the same difficulties as determining a rule for direct application, because in the absence of evidence of clear and widespread acceptance by sovereigns of the proffered norms, judges would have to engage in a discretionary and open-ended enterprise to settle on their content. Congress has not provided any clear guidance in the area. Thus, it could be argued that Sosa’s cautionary rationales apply in the context of construction as well. Some might counter that, because the Charming Betsy canon is best rooted in separation of powers, Sosa’s rationales for circumscribing the scope of international law do not apply. The Charming Betsy is designed, the argument runs, to help the judiciary avoid putting the United States out of compliance with international law in the absence of a clear decision of the political branches.28 But, as Professor Curtis Bradley, the leading proponent of this conceptualization of the Charming Betsy canon, recognizes, this separation of powers benefit must be balanced against separation of powers costs, which include judicial discretion in determining the content of international law.29 Restricting the content of the international norms to those that enjoy clear and widespread acceptance by sovereigns helps ensure the proper balance.30 Under the Sosa framework for international law derivation, the Charming Betsy canon remains fully applicable to 24 25 26 27

28 29 30

Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004). Id. at 726. Id. For a discussion of why democracy is the legitimating feature of the U.S. system, see McGinnis & Somin, supra note 21, at 1196–98. For a discussion of why even constitutional norms are legitimated by a democratic process, albeit a supermajoritiarian one, see John O. McGinnis & Michael Rappaport, Originalism and the Good Constitution, 98 Geo. L.J. 1693 (2010). See Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479 (1997). Id. at 531. Bradley also admits that the separation of powers costs make the balance close. Id. at 532. Cutting back on the scope of the doctrine will better assure that it is applied only when the separation of powers benefits outweigh the costs.

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international norms with powerful positive support, where the separation of powers benefits outweigh the costs. In contrast, claimed international norms that are derived from more abstract or moral principles and lack clear evidence of actual consensus among sovereign nations should not function as rules of construction. Others might counter that using international law in statutory construction is less intrusive on Congress’s prerogative and the democratic process in general because Congress can of course override the Court’s statutory construction. But Congress can override any use of customary international law, and thus its ability to do so with respect to statutory interpretation does not distinguish it from the ATS, where the Sosa Court has mandated caution in the use of custom.31 Nor would reading Charming Betsy through the prism of Sosa have changed the results of cases in the modern era. As Professor Melissa Waters demonstrates, many, if not most, of the cases invoking Charming Betsy apply the canon to international norms based on treaties rather than customary international law.32 The others rest on the kind of customary international law endorsed by Sosa – well-established and indeed venerable norms almost universally accepted by sovereign states.33 Two of Sosa’s other reasons for urging caution in deriving customary international law seem to be more linked to the particular circumstances of the ATS in that they relate to providing private causes of action under customary international law. First, the Court noted that, even in the domestic context, it was loath to infer private causes of action from substantive standards. It would be anomalous to be more lax in the international sphere.34 Second, permitting private causes of action for claims that arise outside of the United States permits regulation of conduct in another country, thereby affecting our foreign policy.35 In the context of furnishing a substantive rule of decision or a rule of construction, the use of customary international law within American jurisprudence may not require a private cause of action and that cause of action may not directly implicate a foreign nation. For instance, a litigant may press a cause of action under domestic law and yet argue that an international norm might be read to preclude the discretion that an official defendant would otherwise enjoy. Thus, these additional reasons for caution in the ATS context might suggest that Sosa’s rules for customary international law derivation do not apply unless customary international law is used to furnish a private cause of action with effects abroad. Yet Sosa’s first two rationales for caution are themselves sufficient to require federal courts to derive customary international law under the constrained framework that Sosa prescribes for ATS claims. In any context, deploying customary international law is the exercise of a common law power that calls for constraint, and a stringently positivist view of international law furnishes substantial constraint. Moreover, as is discussed later, the requirement that international norms reflect the actual widespread practices of nationstates, including democratic states, makes it much more likely that the norms have 31

32 33 34 35

For a general discussion of why it is not a complete answer to the democratic deficit of customary international law to note that Congress can change the rule, see McGinnis & Somin, supra note 21, at 1225–26. See Chapter 12, pp. 397–401. Id., pp. 382, 385–86. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004). Id. at 728.


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some democratic pedigree. The positivist approach to international law also tempers the tension between the lawmaking powers assumed by the federal judiciary and the need for “legislative guidance” noted in the Sosa Court’s second rationale for caution – a concern that applies to the use of customary international law in any context. Thus, the modern status of customary international law as federal common law and the realist understanding of that common law necessitate the methodology advanced by Sosa, even outside the particular circumstances of the ATS.

III. Sosa’s Recommended Methodology for Deriving International Law Assuming that Sosa’s constrained approach is applicable to deriving customary international law whenever it might be used as a rule of decision or as an interpretive guide, it represents the Court’s endorsement of a relatively strict positivist approach toward customary international law rather than the looser approaches sometimes advocated in the modern era. This approach stems from a combination of domestic and international law positivism. After Erie, the Supreme Court has been concerned with cabining federal discretion in applying non-legislative norms of law, and international law positivism offers the best way of curbing that discretion in the international realm. In other words, international law positivism is the mechanism by which the law of the United States realizes its ambition of judicial constraint. Regardless of whether international positivism is the best reading of current international law practice, it is the best structure for integrating international law into domestic jurisprudence. As discussed, Sosa requires evidence of actual state practice endorsing the international norm as legal obligation. It requires that this evidence be supplied at the level of specificity of the claimed international norm, rejecting inferences from more diffuse and general principles. To understand the possible significance of Sosa in this regard, it is necessary to discuss briefly the range of views on the nature of customary international law in the modern era. An effective way to understand the range is to assess its poles, even if some scholars take more of a middle ground. Positivists or classicists occupy one of the poles.36 They believe that customary international law must be rooted in the widespread consensus of nation-states reflected in their actual practice.37 Only if nation-states generally engage in a practice and do so from a sense of legal obligation will that practice be deemed a rule of customary international law. The sense of legal obligation is called “opinio juris” and it too is measured objectively under the positivist conception. Under this view, the question for opinio juris is not whether the practice is morally right and should be observed out of a sense of legal obligation but whether it actually is undertaken from a sense of legal obligation.38 This methodology for determining the rules of customary international law restricts customary international law’s range. Partly for that reason, it may not be the prevalent 36

37

38

See, e.g., Arthur M. Weisburd, Customary International Law: The Problem of Treaties, 21 Vand. J. Transnat’l. L. 1, 32 (1988) (arguing for a more rigorous examination of evidence of state practice and opinio juris). See Restatement (Third) of the Foreign Relations Law of the United States § 102 (1987) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”). Id. cmt c.

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view of contemporary scholars. Many human rights norms would generally fail to qualify as custom in this conception, because they rarely represent the actual practices of states. Under a less positivist concept of international custom, some scholars embrace a methodology that permits substantial human rights norms to be encompassed within customary international law. For example, instead of requiring that nation-states actually engage in a practice, they substitute statements by nation-states that give the norms verbal endorsement39 – often at high levels of generality. These statements include, for instance, UN General Assembly resolutions.40 In short, some modern customary international law has become less an inductive methodology in which custom is rooted in actual practices of states than a deductive methodology in which it is inferred from higher level, often natural-law-like, principles.41 Under this conception, opinio juris at times becomes a normative concept, focusing not on whether nations in fact act out of a sense of legal obligation, but on whether they should do so.42 This cast of customary international law necessarily gives more power to those making the inferences, such as publicists and international courts. The expansion of the persistent objector rule also makes nations’ actual practices less central to customary international law, because nations can be seen as supporting a norm merely by failing to object.43 This modern debate between deductive and inductive approaches at least faintly echoes the debate recounted in this volume between Chief Justice Marshall in The Antelope and Justice Joseph Story in The La Jeune Eugenie, where Marshall took a positivist view and Story a natural law view.44 Sosa’s endorsement of a positivist, inductive paradigm at the expense of the more deductive one comes at three levels. First, the whole thrust of Sosa is to reduce uncertainty and constrain discretion in the derivation of customary international law. Because positivist customary international law focuses on more objective factors, like hard evidence of actual state practice, it is clearly the model to which Sosa tends.45 Second, Sosa requires the international norm on which an ATS claim is based to be a norm accepted by the civilized world and defined with substantial specificity.46 Preventing inferences from norms accepted at high levels of generality gives less play for consideration of the natural justice of the rule or of the inferences of publicists or international courts from general ´ principles. Finally, in evaluating Alvarez’s claims, Sosa takes evidentiary positions that are much more in keeping with a stringently positivist view. It looks for hard evidence ´ prohibiting even short detentions, because that is the level of specificity at which Alvarez 47 made his claim. It specifically contrasts the aspirations for such a principle of justice 39 40 41 42 43 44 45

46 47

Patrick McLain, Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force Against Iraq, 13 Duke J. Comp. & Int’l L. 233, 239 (2003). Christine D. Gray, International Law and the Use of Force 4 (2000). See Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law, 95 Am. J. Int’l L. 757, 775–77 (2001). Id. J. Patrick Kelly, The Twilight of Customary International Law, 40 Va. J. Int’l L. 449, 508–10 (2000). See Chapter 1, pp. 35–36. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 737 (2004) (“Even the Restatement’s limits are only the beginning of the enquiry . . . because it may be harder to say which policies cross that line with the certainty afforded by Blackstone’s three common law offenses.” (emphasis added)). Thus, it seems clear that statements in the Restatement are not enough on which to base a claim unless they are supported by evidence of specific practice. Id. at 734–35. ´ Id. at 737 (concluding that Alvarez’s evidence was at too high a level of generality).


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with the lack of evidence for such a principle as positive law, making clear that customary international law cannot be based on moral reasoning or inferences.48 One possible counterargument is that while the Court signaled the need for great caution and rigor in deriving customary international law norms, it also cited some lower court cases that had been less rigorous and cautious.49 But in my view the better way to read a Supreme Court case is to look at its rationales and its holding rather than its citation of lower court cases.50 The former are both more principled and more generative. In Sosa, the rationales offered for cabining judicial discretion in federal common law discussed earlier point in the same direction as the Court’s resolution of this particular case through a rigorous search for actual state practice supporting the specific norm at issue.51 This approach to customary international law derivation reflects the movement to positivism contained in Erie. If federal courts are not to make customary international law “a brooding omnipresence in the sky,”52 they need to ground it in sovereign acts. A positivist view of customary international law can achieve this because in such a view customary international law is supposed to reflect the widespread, if not universal, decision to adopt a norm as binding law.53 It follows that the legal sources that are relevant to determining customary international law are those that directly help us determine the sovereign acts of nation-states that made such adoptions. Legal realism has also played a role in this conception of customary international law. Sophisticated legal realism, of course, suggests not that judges and other legal actors make all decisions according to politics, but that politics informs their use of discretion and their resolution of ambiguity. The realist concern about judicial discretion provides another reason to ground customary international law in specific principles reflected in the actual acts of sovereigns rather than inferences by publicists or others reasoning from higher level principles.54 Given Erie and the rise of legal realism, it is not surprising that Sosa embraces a positive customary international law not unlike that of The Paquete Habana more than a century ago.55 It might be argued that Sosa’s embrace of the international positivist paradigm for deriving international law does not comport with an originalist approach to interpretation, 48 49 50

51

52 53 54

55

Id. at 728. See Sosa, 542 U.S. at 732 (citing Filartiga v. Pena-Irala, 630 F. 2d. 876 (2d Cir. 1980) and other lower court cases). See also Bradley, Goldsmith & Moore, supra note 19, at 901 (“[T]hese citations must bear less weight than the Court’s own treatment of controversial sources of customary international law, which . . . was significantly restrained.”). Nothing in the approach described here suggests that the violation of an international law rule logically forecloses the existence of that rule as international law. A rule of customary international law may have been proved to exist at a particular time through a positivist approach. If states subsequently violate it, their violations do not by themselves negate the rule. Moreover, I do not believe that Sosa requires that a rule be supported by universal consensus, only an overwhelming one. In that way as well, the violation of rules by a few nation-states does not foreclose the existence of a customary international law rule. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). See Chapter 7, p. 246 (suggesting that after Erie international law can be conceptualized as coming “from sovereign authority, or rather from the common consent of multiple sovereigns”). There can be no doubt that publicists may have distinctive political views unrepresentative of their nations. See John O. McGinnis et al., The Patterns and Implications of Political Contributions of Elite Law School Faculty, 93 Geo. L.J. 1167, 1183 (2005) (showing that international law professors contribute to Democratic candidates over Republican ones by a margin of five to one). See Chapter 3, pp. 98–99.

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because the natural law paradigm for deriving international law dominated the early Republic, when the federal courts were created and the ATS enacted.56 The question of the state of international law under originalism is too vast a subject to be discussed here, but taking a positive law approach today is not necessarily inconsistent with originalism. Even if international law was applied in federal courts as common law at the time of the Framing,57 the content of that common law was not frozen in time. Courts can transform its content and structure in light of changing circumstances. Here the fundamental change may be in our view of law itself. Because we are doubtful about the possibility of a fixed natural law, we look for mechanisms in positive law to constrain judges in their common law judgments and transform the content of common law accordingly.

IV. Normative Analysis Some scholars have suggested that customary international law should not be given any binding effect in U.S. law because it is of low quality.58 Its low quality stems from its democratic deficit that is not redeemed by any compensating features. In this section, I evaluate the extent to which Sosa’s constrained version of customary international law addresses these criticisms. A constrained version of positivist customary international law helps temper concerns about a democratic deficit. One substantial concern about a democratic deficit is the role of unelected publicists or international courts in making inferences about the content of customary international law. But Sosa’s theory makes clear that publicists’ theories and international court judgments are useful only if they provide evidence of a norm from actual state practice. Moreover, if customary international law must be based on the actual acts of states and evaluated at the level of specificity for which the claim is made, there is much less room for inferences about its content. Thus, Sosa’s “inductive” process constrains the power of unrepresentative elites over customary international law’s content and reduces the democratic deficit. Second, Sosa’s interest in finding evidence of customary international law at the level of domestic state practice helps address another element contributing to an important democratic deficit – the danger that customary international law will be based on cheap talk, such as UN resolutions or mere statements. Cheap talk makes it less likely that customary international law will emerge from a process that assures quality of the norms.59 Finally, Sosa demands evidence that the great majority of nations in the world, including democratic nations, would give legal effect to the norm at issue. Thus, a strict positivist construction of customary international law would temper the democratic deficit, because the consensus of many nations would likely include a large number that are democratic. Nevertheless, Sosa does not completely alleviate the concerns of those who complain of customary international law’s democratic deficit. First, the best notions of democracy 56 57 58 59

See Chapter 1, pp. 8–9 (discussing conceptions of international law in the early Republic). See id., pp. 10–11. See, e.g, McGinnis & Somin, supra note 21, at 1179–80. As economists explain it, “cheap talk” is the opposite of costly signaling. See Daniel B. Rodriguez & Barry Weingast, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation, 151 U. Pa. L. Rev. 1417, 1445–46 (2003).


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include a notion of subsidiarity.60 Some aspects of modern customary international law, particularly human rights norms, concern matters that do not have substantial externalities from one nation to another. In the absence of substantial externalities, it does not advance democratic principles informed by subsidiarity to impose international law norms on a democratic nation like the United States even if these norms enjoy widespread support in other democratic nations.61 As the people most affected, the citizens of each nation are in the best position to make determinations about norms that have effect only in their nation. Moreover, diversity in rights norms among different democratic nations is beneficial, because nations can learn from one another by analyzing the effects of such norms and, to at least a limited extent, citizens can choose from different bundles of norms by making decisions about where to live. Second, because positivist international law requires widespread consensus among states, once formulated, customary international law is difficult to change because it would appear to require a new consensus to create a new norm.62 Even if all states participating in the formulation of international law were democratic, customary international law might fail to represent contemporary sentiment, as opposed to past democratic sentiment. The consensus requirement of international law could lock in norms even if they are suboptimal.63 The problem is exacerbated in an age of rapid and, according to some, accelerating change.64 Because customary international law arose at a time when the rate of technological and social changes was relatively slow, its rules were unlikely to become anachronistic. But if the nature of the world’s challenges changes faster today, the dead hand problem becomes more acute. One might argue that other doctrines address this problem. If customary international law must yield to a “controlling executive or legislative act,”65 the President and Congress within their respective spheres of authority can set aside outdated international norms.66 Nevertheless, this doctrine does not provide a complete answer to the dead hand of customary international law, because customary international law would still be the default rule. Congress, in particular, faces substantial legislative inertia in changing norms. 60

61

62 63 64 65 66

Joel Trachtman offers a useful definition: “The principle of subsidiarity indicates that particular social issues should be addressed at the level of society where they can be addressed most effectively. “ See Joel P. Trachtman, International Regulatory Competition, Externalization, and Jurisdiction, 34 Harv. Int’l L.J. 47, 99 (1993). I have argued elsewhere that the democratic deficit is a problem in this respect even with human rights law. See John O. McGinnis & Ilya Somin, Democracy and International Human Rights Law, 84 Notre Dame L. Rev. 1739 (2009). G. J. H. van Hoof, Rethinking the Sources of International Law 114 (1983). This can be a general problem with norms that rely on entrenched customs. See Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. Pa. L. Rev. 1697, 1712 (1996). See Ray Kurzweil, The Singularity is Near 10–20 (2005) (arguing that technology is changing at an ever accelerating rate). See The Paquete Habana, 175 U.S. 677, 700 (1900). Not all scholars agree with this interpretation of The Paquete Habana. See, e.g., Francisco Forrest Martin, Our Constitution as Federal Treaty: A New Theory of United States Constitutional Construction Based on Originalist Understanding for Addressing a New World, 31 Hastings Const. L.Q. 269, 308 & n.145 (2004) (dismissing the “controlling act” language of The Paquete Habana as dicta). But Sosa may be instructive here as well. By giving weight to executive decisions in deciding whether an ATS suit is to go forward, see Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004), the Court certainly seems disposed not to impose international norms against the expressed will of the Executive.

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Finally and perhaps most importantly, even under Sosa the derivation of customary international law remains a more complex and uncertain enterprise than discerning rules in a legal code or canonical text. Sosa’s test for the content of customary international law may not succeed in forcing future judges to be similarly constrained. Substantive due process in U.S. constitutional law furnishes a useful analogy. In Washington v. Glucksberg,67 the Court tried to cabin substantive due process by requiring the identification of a fundamental right “objectively, deeply rooted in this Nation’s history and tradition,” as well as a “careful description of the asserted fundamental liberty interest.”68 The similarity between the Glucksberg standard for deriving fundamental rights and the Sosa standard for deriving customary international law is striking. Sosa’s requirement that international law norms represent a consensus of the actual practices of the civilized world, like Glucksberg’s requirement of objective evidence of deeply rooted traditions, helps make sure that norms have objective roots in democratic sentiment. Sosa’s requirement of specificity, like Glucksberg’s requirement of “careful description,” attempts to cabin the discretion of judges. Yet less than ten years after Glucksberg, the Court in Lawrence v. Texas announced a right to same-sex sexual conduct under the Due Process Clause even though that right could not be derived by Glucksberg’s methodology.69 Thus, the ultimate question about Sosa’s structure for deriving customary international law may be its staying power. The experience with substantive due process suggests that judges have difficulty respecting constraints of their own creation when these constraints interfere with their own notions of natural justice. Thus, the old tension between customary international law’s natural law and positivist roots may yet reemerge in the context of U.S. jurisprudence. The Court will surely have future opportunities to demonstrate its adherence (or lack thereof) to the Sosa framework, because a number of lower courts have found international norms under the ATS using an expansive methodology that appears incompatible with Sosa.70 67 68 69 70

521 U.S. 702 (1997). Id. at 721. See Lawrence v. Texas, 539 U.S. 558 (2003). For discussion of this point, see Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555 (2004). In Abdullahi v. Pfizer, Inc., 562 F.3d. 163 (2009), the Second Circuit permitted an ATS suit against Pfizer for testing a new antibiotic on children who were patients in Nigerian hospitals. It relied in substantial part on the Nuremberg trials to hold that Pfizer may be liable for not getting fully informed consent to the drug. But the Nuremberg precedent established only that patients may not be given drugs against their will, not that they must be fully informed. Thus Abdullahi seems in some tension with Sosa’s specificity requirement. Similarly, some courts have found that corporations can be liable under the ATS for aiding and abetting the human rights violations of abusive governments if they knew or should have known that the aid they provided such governments would assist in the abuse. See Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002); In re South African Apartheid Litig., 617 F. Supp. 2d 228 (E.D.N.Y. 2009). But see Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) (finding no liability where corporation did not share government’s purpose). But neither liability for corporations nor the mens rea requirement of knowledge for aiding-and-abetting liability seems firmly grounded in specific and uncontested international law principles. See Julian G. Ku, The Curious Case of Corporate Liability Under the Alien Tort Statute: A Flawed System of Judicial Lawmaking, 51 Va. J. Int’l L. 353 (2010) (arguing that corporate liability is not firmly grounded in international law); Michael D. Ramsey, International Law Limits on Investor Liability in Human Rights Litigation, 50 Harv. Int’l L.J. 271 (2009) (discussing difficulties of establishing an international law standard for mens reas in the aiding-and-abetting context). Thus, these cases may also run afoul of Sosa’s requirement that norms accepted under the ATS have the same definite content and international acceptance as the paradigm cases at the time the ATS was adopted.


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V. Conclusion Sosa v. Alvarez-Machain may have important implications for deriving customary international law even outside the context of the ATS, because it recognizes the need for constraint in deriving customary international law’s content, given customary international law’s status as common law and the modern realist understanding of that law. If the Court continues on the path set by Sosa – a condition admittedly not free from doubt – customary international law would acquire a somewhat austere aspect within American jurisprudence. Normatively this development would be welcome, because it would refocus decisions about the reception of controversial international norms from the judiciary to the more democratic branches. It would also temper the importance of the fierce debate about the status of customary international law in American law, because the scope of customary international law that would be imported even under the standard academic position would be modest and would generally reflect only those specific norms that had been given effect by the great majority of nations, including democratic nations, around the world.

Response Essay “Cheap Talk” about Customary International Law Chimène I. Keitner∗

In his comment on Sosa v. Alvarez-Machain,1 Professor Edward Purcell characterizes Erie Railroad Co. v. Tompkins2 as “a kind of jurisprudential Rorschach test, a device that reveals the political goals and values of those who seek to use it.”3 The same can be said of Sosa itself.4 When Professor John McGinnis looks at Sosa, he sees an “astringently positivist” approach to the identification of customary international law.5 In his view, Sosa confirms the errancy of scholars who find customary international law status for “substantial human rights norms” that can then be applied in U.S. domestic law.6 These scholars err because “instead of requiring that nation-states actually engage in a practice, they substitute statements by nation-states that give the norms verbal endorsement – often at high levels of generality,” such as UN General Assembly Resolutions.7 Although Professor McGinnis does not specifically mention treaties, others who share his general view of Sosa have – Professors Curtis Bradley, Jack Goldsmith, and David Moore, for example.8

∗

1 2 3 4

5 6 7

8

Associate Professor of Law, University of California, Hastings College of the Law. The author thanks the editors for their comments. 542 U.S. 692 (2004). 304 U.S. 64 (1938). Edward A. Purcell, Jr., History, Ideology, and Erie v. Tompkins, infra p. 501. And, indeed, it has been. See Ernest A. Young, Sosa and the Retail Incorporation of International Law, 120 Harv. L. Rev. F. 28, 28 (2007) (characterizing Justice Souter’s opinion in Sosa as “something of a Rorschach blot, in which each of the contending sides in the debate over the domestic status of customary international law (CIL) sees what it was predisposed to see anyway”). John O. McGinnis, Sosa and the Derivation of Customary International Law, supra p. 482. Id., p. 488. Id. (emphasis added). Although Professor McGinnis takes aim at contemporary scholars, other contributions to this volume make clear that the Supreme Court itself has given “actual practice” more lip service than actual weight in a variety of contexts. See Chapter 11, p. 368 (discussing post–World War II cases); Chapter 7, pp. 238–40 (discussing pre–World War II cases including New Jersey v. Delaware, 291 U.S. 361 (1934)); Chapter 3, pp. 103–12 (discussing nineteenth-century cases and noting that “even as the rhetoric of the Court’s decisions seemed to emphasize customary international law as the empirical product of state practice, the evidence of such norms that the Court chose to cite was often not so inductive”). Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 870, 889 (2007) (characterizing the alternatives as focusing

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“Cheap Talk” about Customary International Law

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According to this “positivist” critique, “publicists’ theories and international court judgments are useful [for identifying the content of customary international law] only if they provide evidence of a norm from actual state practice.”9 Proponents of this critique define “actual state practice” narrowly to include only what states do, not what they say.10 In this perspective, all talk is “cheap talk,”11 and the fact that such talk is engaged in by sovereigns does not make it a “sovereign act[]” capable of “ground[ing]”12 a customary international law norm that can be applied in U.S. law. Professor McGinnis singles out “UN resolutions” and “mere statements” for criticism,13 but no one would suggest that such statements, on their own, could create a customary international law norm. The more interesting, and contested, question is whether and to what extent treaties count as state practice for the purpose of identifying customary international law, particularly in the human rights context. This response focuses on that question.14 Overstating the dichotomy between a sovereign’s acts and its statements fails to recognize that, in a variety of contexts, statements are acts (or “practice,” to use the technical term). This is most clearly true of statements that create treaty obligations, but it is also true of statements that create the basis for inferring opinio juris – the belief that a particular course of conduct was legally required. One need not cloak oneself in the allegedly discarded mantle of natural law to recognize that, on the international plane, states signal their mutual expectations and beliefs about the content of legal obligations through the very channels that Professor McGinnis would exclude from the ledger of what “counts” as evidence of customary international law. States act as if what they say matters. This is because customary international law norms are, to a large extent, crystallized patterns of mutual expectations. When states articulate their expectations and attempt to explain noncompliance, they provide evidence of shared beliefs in the content of international norms and their scope of application. Cumulatively, these statements can both contribute to and serve as evidence of customary international law. As the International Court of Justice has reasoned, “[i]f a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to

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11 12 13 14

either on “verbal evidence of state positions such as treaties and U.N. General Assembly Resolutions” or on “state practice”). McGinnis, supra note 5, p. 490. Id., p. 487 (citing Restatement (Third) of Foreign Relations Law § 102 for the proposition that “[c]ustomary international law results from a general and consistent practice of states followed by them from a sense of legal obligation”). Id., p. 490. Id., p. 489. Id., p. 490. Space limitations preclude response to other aspects of Professor McGinnis’s analysis, many of which already form the subject of rich debate. These include his assertion that the law of the United States has, or should have, a blanket “ambition of judicial constraint,” id., p. 487; that judges inevitably impose “their own notions of natural justice” when given the opportunity to do so, id., p. 492; that domestic law norms are invariably superior in quality to customary international law norms, id., p. 490; and that we should encourage diversity in domestic norms because individuals who disagree with or are adversely affected by a particular country’s norms can simply move elsewhere. Id., p. 491. I also find it puzzling that Professor McGinnis expresses concern about the potential for the “dead hand” of customary international law to entrench an “anachronistic” rule, id., p. 491, while at the same time rejecting the Supreme Court’s “announce[ment of] a right to same-sex sexual conduct under the Due Process Clause” as insufficiently attentive to “‘this Nation’s history and tradition.’” Id., p. 492 (citing Washington v. Glucksberg, 521 U.S. 702 (1997) and Lawrence v. Texas, 539 U.S. 558 (2003)). It may be that the real debate is less about the process of norm identification and more about substantive outcomes.

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exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.”15 Professor McGinnis advocates removing what states say from the list of what counts as state practice, and he attempts to recruit Sosa in support of this position. However, this narrow view of what counts as state practice cannot fairly be supported by Sosa. Sosa instead adopts a position consistent with the Restatement (Third) of Foreign Relations Law, which clearly recognizes that what states say can both generate and provide evidence of customary international law.16 Indeed, as Professors Bradley, Goldsmith, and Moore acknowledge, the Sosa Court favorably cited “prior lower court opinions that had embraced the very methods and sources of customary international law identification that the Court in Sosa appeared [in their view] to discount.”17 Professor McGinnis would not construe these citations as endorsements,18 but a close reading of the Court’s opinion in Sosa indicates that these favorable citations carry substantial weight. Justice David Souter’s opinion for the Court in Sosa discusses the “methods and sources of customary international law” in Part IV.C.19 At the outset, Justice Souter invokes United States v. Smith20 to illustrate the degree of specificity required for a law of nations violation to be actionable under the Alien Tort Statute (ATS). The federal statute at issue in Smith provided for U.S. criminal jurisdiction over any person who “upon the high seas, commit[s] the crime of piracy, as defined by the law of nations” and is subsequently brought into or found in the United States.21 Justice Story, who delivered the opinion of the Court, noted in Smith that “whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo furandi, is piracy.”22 In other words, even if disagreement exists at the periphery, a norm will satisfy the specificity requirement as long as there is an identifiable core of prohibited conduct and the defendant’s alleged conduct falls within that core. If customary international law itself were a Rorschach test, it would be important that everyone looking at the ink blot could discern a pin, even if they disagreed about how many angels were dancing on its head. Next, Justice Souter indicates that the approach announced in Sosa is “generally consistent” with prior ATS cases involving alleged human rights violations.23 He traces a 15 16

17 18 19 20 21 22 23

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 98 (June 27). Restatement (Third) of Foreign Relations Law § 102, cmt. b, specifically defines the “practice of states” as including “diplomatic acts and instructions as well as public measures and other governmental acts and official statements of policy, whether they are unilateral or undertaken in cooperation with other states” (emphasis added). See also id. § 102(3) (indicating that treaties may lead to the creation of customary international law “when [they] are intended for adherence by states generally and are in fact widely accepted”); id. § 102, cmt. i (indicating that “[i]nternational agreements constitute practice of states and as such can contribute to the growth of customary law,” and that “[a] wide network of similar bilateral agreements on a subject may constitute practice and also result in customary law”); id. § 701, Reporters’ Note 2 (enumerating forms of state practice, including international agreements and statements, that are “accepted as building customary human rights law”). Bradley, Goldsmith & Moore, supra note 8, at 901. McGinnis, supra note 5, p. 489. Sosa v. Alvarez-Machain, 542 U.S. 692, 732-38 (2004). 18 U.S. 153, 163–80 (1820), cited in Sosa, 542 U.S. at 732. Smith, 18 U.S. at 157. Id. at 161. Sosa, 542 U.S. at 732. As examples, Sosa cites Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980) (citing the 1975 UN Declaration on the Protection of All Persons from Being Subjected to Torture),

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line of continuity between these cases and The Paquete Habana, which endorsed looking to “the customs and usages of civilized nations”24 as creating customary international law, and to the works of jurists and commentators as evidence of customary international law thus created. Despite its reputation as a hallmark of international law positivism, The Paquete Habana itself looked to treaties (including treaties to which the United States was not a party) as evidence of customary international law.25 ´ In evaluating whether Alvarez’s claim against Sosa gives rise to jurisdiction under the ATS, Justice Souter asks whether customary international law prohibits arbitrary 26 ´ detention of the type alleged by Alvarez. In so doing, he examines international statements – the very sources that Professor McGinnis would discount. Although Justice Souter indicates that the Universal Declaration of Human Rights27 and the International Covenant on Civil and Political Rights28 do not “themselves establish the relevant and applicable rule of law” – the Universal Declaration because it is a nonbinding statement of principles and the International Covenant because it is non-self-executing – he does not reject the idea that UN resolutions and non-self-executing treaties can provide evidence of the content of customary international law.29 Indeed, he specifically recognizes that the Universal Declaration has “had substantial indirect effect on international law.”30 In considering the content of customary international law, Sosa cites with approval Restatement (Third) of Foreign Relations Law § 702, which indicates that “a ‘state violates [customary] international law if, as a matter of state policy, it practices, encourages, or condones . . . prolonged arbitrary detention.’”31 The Court does not reach the question of exactly which policies of prolonged arbitrary detention could be described “with the certainty afforded by Blackstone’s three common law offenses” and thus fall within the subset of customary international law norms actionable under the ATS.32 However, it does not take issue with the Restatement’s conclusion that prolonged arbitrary detention violates customary international law, which is based largely on a statement by the U.S. delegation to the UN General Assembly and provisions in the International Covenant on

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Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984) (Edwards, J., concurring) (adopting “the Filartiga formulation” and looking to Restatement (Third) of Foreign Relations § 702 for guidance on the content of customary international law), and In re Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994) (relying on “‘numerous international conventions and declarations’” to find that “the right to be free from official torture” and “[t]he prohibition against summary execution or causing ‘disappearance’” are “universal, definable, and obligatory”); see also Memorandum for the United States Submitted to the Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, reprinted in 19 I.L.M. 585 (1980) [hereinafter U.S. Filartiga Brief] (relying heavily on treaties to support the conclusion that “nations have accepted as law an obligation to observe fundamental human rights”). 175 U.S. 677, 700 (1900). See id. at 687–91; see also Chapter 3, p. 105. ´ Earlier in Part IV.C, Justice Souter alternatively refers to Alvarez’s claim as one for “arbitrary detention” and one for “arbitrary arrest” and notes that the focus of the claim shifted somewhat from the time the complaint was filed to the time the case reached the Supreme Court. He ultimately characterizes the potential customary international law violation at issue as “officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances.” Sosa, 542 U.S. at 735–36. G.A. Res. 217A (III), U.N. Doc. A/810 (1948). 999 U.N.T.S. 171 (Dec. 16, 1966). Sosa, 542 U.S. at 734–35. Id. at 735 n.23. Id. at 737 (citing Restatement (Third) of Foreign Relations Law § 702(e)). Id.

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Civil and Political Rights (which was unratified at that time and which is still non-selfexecuting today).33 In sum, Sosa does not adopt Professor McGinnis’s narrow approach to customary international law in the ATS context, let alone in other contexts beyond the scope of that decision. Sosa’s endorsement of the Restatement (Third) approach does not mean that the approach is without flaws or that it cannot be misapplied. However, one can easily reject the extreme assertion (which the Restatement does not endorse) that statements by countries are by themselves sufficient to create binding law and yet still recognize that statements constitute important evidence of the existence of a customary international law obligation – a norm that states recognize as binding, whether or not they always comply with it. As the Sosa Court was careful to emphasize and as Professor McGinnis accepts, “the violation of an international law rule” does not “logically foreclose[] the existence of that rule as international law.”34 Any attempt to recruit Sosa for a “positivist” approach must respect this principle. It is difficult to escape the conclusion that, at bottom, Professor McGinnis’s concern is less about the sources of customary international law and more about its substantive content. For example, he appears to endorse the Second Circuit’s conclusion in Presbyterian Church of Sudan v. Talisman Energy Inc. that customary international law requires aiders and abettors of international law violations to share the principal’s purpose.35 But those who have found that customary international law requires shared purpose, rather than knowledge, base this conclusion largely on language in the Rome Statute for the International Criminal Court (ICC), an unratified treaty whose provisions on accomplice liability have not even been construed by the ICC itself.36 It seems that the most one can say is that, where there is evidence that states routinely fail to live up to the standards of behavior they explicitly set for themselves, a court should determine whether this means that the standard is “merely” aspirational (and thus counsels against a finding of opinio juris), or whether it in fact supports a finding of opinio juris precisely because states go out of their way to conceal or disavow noncompliance. Viewed in this way, certain core human rights violations undoubtedly meet the standard articulated by the Supreme Court in Sosa. As the U.S. government argued in Filartiga, “[w]hile some nations still practice torture, it appears that no state asserts a right to torture its nationals. Rather, nations accused of torture unanimously deny the accusation and make no attempt to justify its use. That conduct evidences an awareness that torture is universally condemned.”37 Absent action by Congress, ATS cases will continue as long as fundamental human rights violations are committed and their perpetrators or accomplices come within the personal jurisdiction of U.S. courts. The Sosa standard, like the Rorschach inkblot test, will continue to generate spilled ink.

33 34

35 36

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See Restatement (Third) of the Foreign Relations Law of the United States § 702, cmt. h (1987). Sosa, 542 U.S. at 738 n.29 (citing Filartiga v. Pena-Irala, 630 F.2d 876, 884 n.15 (2d Cir. 1980) (indicating that “[t]he fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law”)); McGinnis, supra note 5, p. 489, n. 51. McGinnis, supra note 5, p. 492, n. 70 (citing Presbyterian Church of Sudan v. Talisman Energy Inc., 582 F.3d 244 (2d Cir. 2009). Talisman, 582 F.3d at 259. But see Chimène I. Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 61, 85–87 (2008) (emphasizing that the Rome Statute does not codify customary international law and does not require shared purpose for complicity in group crimes). U.S. Filartiga Brief, supra note 23, at 585.

Response Essay History, Ideology, and Erie v. Tompkins Edward A. Purcell, Jr.∗

Professor McGinnis’s lucid, balanced, and insightful essay is surely correct in suggesting that the long-term significance of the U.S. Supreme Court’s decision in Sosa v. Alvarez-Machain1 is uncertain. The far-reaching impact of globalization, the changing position of the United States in world affairs, and the evolution of domestic social and cultural values may reshape attitudes toward the substantive political issues that underlie current debates over customary international law. His suggested analogy to Washington v. Glucksberg2 could prove apt. The Court’s history, after all, is replete with doctrines, analytic frameworks, and interpretive methodologies that have been applied erratically, remolded drastically, discarded silently, or repudiated overtly.

I. Political Dynamics and Constitutional Arguments As Professor McGinnis has explored Sosa’s doctrinal implications so thoughtfully, I consider the case from a different perspective – as a paradigmatic example of the political dynamic and rhetorical practice of American constitutionalism. The key to understanding our governmental system is to recognize the ways in which partisan groups struggle to secure relatively hospitable institutional havens for themselves among the levels and branches of government. Such groups support the levels and branches they perceive as most likely to favor their policy goals and seek to check those they perceive as obstacles or threats. Constitutional doctrines, theories, and principles serve as tools to magnify the institutional power of the former while minimizing that of the latter. Both this political dynamic and its generation of contending constitutional arguments are as old as the Constitution itself, beginning classically with Hamilton’s defense of national authority (on the federalism axis) and executive and judicial power (on the separation of powers axis) and Jefferson’s rival defense of state authority (on the federalism axis) and legislative power (on the separation of powers axis). Over the years the dynamic has spawned countless variations and recombinations as rival groups in succeeding generations forged ∗ 1 2

Joseph Solomon Distinguished Professor, New York Law School. 542 U.S. 692 (2004). 521 U.S. 702 (1997); see John O. McGinnis, Sosa and the Derivation of Customary International Law, supra p. 492.

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their own distinctive constitutional ideologies and rhetorics to serve their conflicting purposes in new historical contexts. That dynamic largely explains the jurisprudential contours of contemporary debates over customary international law. Essentially, after World War II some political liberals became vigorous supporters of the international “human rights” movement and recognized that its principles and institutional achievements could be used to support their domestic policy goals, such as prohibiting various forms of discrimination and abolishing the death penalty. They sought to gain legal leverage by expanding the traditional constitutional dynamic to include a newly prominent and empowered “level” of authority: the treaties and customs of international law. Quite understandably, political conservatives rose in opposition, severely challenging or flatly rejecting that proclaimed level of authority. When conservatives succeeded in persuading Congress and the Executive to refuse to ratify most international human rights treaties or to ratify them with non-selfexecuting declarations and other reservations, liberals began to look toward the federal judiciary and maintain that it had the right to enforce customary international law on its own authority. Conservatives responded by denying that authority and insisting that customary international law could become law in the United States only with the approval of Congress and the Executive. When the Warren Court used federal judicial power to serve liberal policies and conservatives reacted by seeking to restrict that power and reverse those policies, their efforts confirmed the two sides in their contrasting views of the federal judicial power and extended their conflicting attitudes to issues that ranged across the spectrum of constitutional debate. Thus, by the time that the international human rights movement gained new momentum in the late 1970s and the 1980s, the positions of the two sides had long since hardened into rival ideological principles. Against that background, the opinions in Sosa are readily understandable. Six Justices, three considered “liberals” and three considered “moderates,” joined to outline a cautious approach to customary international law claims. On the one hand, they affirmed the power of the federal courts to enforce customary international law in the context of the Alien Tort Statute (ATS),3 but on the other hand they prescribed a highly deferential role for those courts and limited their power to claims that met sharply restrictive conditions.4 Concurring in the judgment denying plaintiff’s claim, the Court’s three “conservatives” agreed with the limiting elements of the majority’s opinion but rejected its conclusion that the federal courts possessed narrow discretion to recognize new customary international law claims.5 Their goal was to deny the federal judiciary any power to enforce such claims absent authorization by the legislative and executive branches. Thus, in Sosa the Justices divided along established ideological lines on a critical issue, while the Court as an institution inched along a political middle road, edging slightly to the right.

II. The Salience of Erie v. Tompkins Just as the lineup of the Justices illustrated the political dynamic at work, the treatment they accorded Erie Railroad Co. v. Tompkins6 exemplified the way the dynamic shapes constitutional arguments. Erie itself said nothing about customary international law, and 3 4 5 6

Sosa, 542 U.S. at 729–30. Id. at 724–28. Id. at 744–47 (Scalia, J., concurring in part and concurring in the judgment). 304 U.S. 64 (1938).

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for a half-century most commentators on the subject assumed that it was not relevant.7 More recently, however, as human rights advocates pressed the federal courts for ever more energetic enforcement of customary international law, conservatives turned to Erie to bolster their grounds of legal opposition.8 Erie, after all, had been the product of an earlier and quite different ideological era when Progressives sought to restrict the jurisdiction and lawmaking capacities of the federal judiciary,9 and the Court’s opinion surely contained language that contemporary conservatives could hope to use. Thus, the contrary arguments of the Justices took shape. The concurrence contended that Erie was central to the customary international law issue and that it imposed strict limitations on federal judicial power. Erie, the concurring Justices argued, held that there was no such thing as “general” common law, that federal courts could only make law when authorized by a positive statutory or constitutional grant, and that mere jurisdictional statutes – such as the ATS – were not grants of lawmaking authority.10 Because customary international law was part of the “general” common law that Erie abolished, and because customary international law claims were not authorized by the Constitution or congressional statutes,11 the concurrence concluded, Erie meant that customary international law necessarily lay beyond the lawmaking power of the federal courts.12 In response, the majority rejected that essentially prohibitory interpretation of Erie and construed the case as establishing for customary international law claims a less restrictive principle of “judicial caution.”13 While Erie induced a “significant rethinking of the role of the federal courts” in making common law and eliminated the “general” law, the majority Justices reasoned, it also inspired a new “special” federal common law based on the constitutional powers of the national government. Thus, for the majority, Erie meant only that the Court should “look for legislative guidance before exercising innovative authority over substantive law.”14 Those contrasting interpretations are unsurprising. Indeed, they fit snugly within the pattern of Erie’s forensic history. New Deal liberals construed the case to uphold broad congressional power and protect ordinary individuals against harsh corporate litigation tactics. Warren Court liberals construed it to strengthen the federal courts and free them from state procedural rules. Burger and Rehnquist Court conservatives construed it to prevent the federal courts from creating statutory and constitutional causes of action for individuals injured by unlawful behavior, while conveniently ignoring it when they created federal common law to protect military contractors from tort suits.15 Thus, the 7 8 9

10 11 12 13 14 15

E.g., Restatement (Third) of the Foreign Relations Law of the United States § 111, Reporters’ Note 3 (1987). E.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). Edward A. Purcell, Jr., Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America, 13–16, 19–26, 64–91 (2000). 542 U.S. at 744 (Scalia, J., concurring in part and concurring in the judgment). The Torture Victim Protection Act, 28 U.S.C. § 1350 note, is a narrow exception. The concurrence cited Bradley & Goldsmith, supra note 8, and followed their basic argument. See 542 U.S. at 739–40, 750 (Scalia, J., concurring in part and concurring in the judgment). 542 U.S. at 725. Id. at 726. Purcell, supra note 9, at 213–16, 287—95, 301–02. The concurrence’s position would serve similar pro-corporate purposes. See William S. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687, 688 (2002) (noting that the defendants in many recent ATS suits are U.S. corporations).

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opinions in Sosa followed familiar ideological practice, demonstrating once again that Erie is a kind of jurisprudential Rorschach test, a device that reveals the political goals and values of those who seek to use it. The use of Erie in Sosa is particularly problematic for the concurrence. The majority did not base its conclusions on Erie but merely construed the case as establishing an important limiting principle. The concurrence, in contrast, relied on Erie as the foundation of its position. Claiming that Erie provided such clear and controlling authority on customary international law issues seems both puzzling and unjustified. The claim seems puzzling because two of the three Justices who concurred, Justices Scalia and Thomas, are outspoken originalists who used Erie to trump the understanding of the Founders. Erie effected – in the words of the concurrence itself – an “avulsive change”16 that rejected the Founders’ views of the nature of the common law. Similarly, Erie also quite likely misconstrued the intention of the First Congress – whose membership included many of the Founders – when it interpreted the meaning of the word “laws” in Section 34 of the original Judiciary Act of 1789.17 Such considerations should have led originalists to argue that Erie, if shielded from overruling by compelling practical considerations, must be confined to areas where it already applied and not be extended to new areas, especially not to an area such as customary international law where it repudiates the original understanding of the Founders.18 Equally striking, the concurrence defends its embrace of Erie and its “avulsive change” on the ground that since 1789 there have been many other changes in both the nature and content of customary international law and federal common law.19 Thus, its argument assumes that legal concepts and principles must be altered and adapted to meet changed historical conditions, an argument that severely limits, if it does not fundamentally undermine, the claims of originalism.20 The concurrence’s claim about Erie is unjustified because the substantial legal changes that it highlights point to a fundamental flaw in its argument. Like both common law and customary international law, “general” law was also an evolving concept, not an eternally fixed category containing timeless and unchanging elements. Between 1789 and 1938, in fact, its content underwent massive changes. It expanded broadly as both constitutional issues and more than two dozen common law fields were pulled within its realm, leading the Court in 1888 to confess embarrassment at its inability to clearly define and limit its scope.21 During the same years, “general” law also contracted as state statutes created increasing numbers of “local” laws that narrowed its rule, and – most telling for present purposes – as the Court withdrew selected components from the

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542 U.S. at 744–45, 749 (Scalia, J., concurring in part and concurring in the judgment). Purcell, supra note 9, at 306 & works cited at 407 nn.98–99. Conservatives similarly stretched Erie when they sought to prevent the federal courts from implying private rights of action under federal statutes and constitutional provisions even though such actions were within areas that Erie expressly recognized as proper for federal judicial lawmaking. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 542 U.S. at 744–46 & n.∗ (Scalia, J., concurring in part and concurring in the judgment). The concurrence attempts to reconcile its use of Erie with originalism by, in effect, abandoning originalism. It contends that changed historical conditions would have led the Founders to change their views. 542 U.S. at 749–50 (Scalia, J., concurring in part and concurring in the judgment). Bucher v. Cheshire R.R. Co., 125 U.S. 555, 583 (1888).

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category and incorporated them into authentically “federal” law. Maritime law was part of “general” law in the eighteenth century, but by the early twentieth century the Court had transformed it into “federal” law through federal admiralty jurisdiction.22 The law of interstate disputes was another area of “general” law based in part on customary international law that the Court incorporated into “federal” law on the basis of a jurisdictional statute.23 Further, the Court narrowed the “general” law of personal jurisdiction and conflicts of laws by partially constitutionalizing both fields.24 Finally, beginning in the 1890s the Court used the Fourteenth Amendment to constitutionalize the “general” law of limitations on government that had developed during the nineteenth century.25 Thus, the content of “general” law changed substantially over time, and the Court assumed that it could constitutionalize or otherwise incorporate into “federal” law those parts of “general” law that covered issues falling within areas of federal constitutional authority. Erie abolished the category of “general” law, but it did not define the specific content of that category, and it neither repudiated those prior incorporations nor prohibited similar incorporations in the future. What Erie did is complex, but for customary international law it is inconclusive. Erie determined that some elements then placed within the category of “general” law – explicitly the commercial law of Swift v. Tyson,26 on its facts the tort law of Baltimore & Ohio Railroad Co. v. Baugh,27 and by express statement all “general” law fields over which Congress lacked legislative power28 – were beyond the non-constitutional lawmaking authority of the federal judiciary. Erie did not determine that all the various components of customary international law were necessarily and forever “general,” nor did it determine that the Court was powerless to incorporate some of them into “federal” law if that became appropriate.29 Indeed, it could not have done so because such a determination would have contradicted its fundamental constitutional premise that congressional power is the touchstone of the non-constitutional lawmaking power of the federal judiciary.30 Thus, Erie left untouched the Court’s long-exercised and still-recognized power to

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30

E.g., S. Pac. Co. v. Jensen, 244 U.S. 205 (1917). E.g., Kansas v. Colorado, 206 U.S. 46 (1907); Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938). Chapter 7, pp. 235–36. Michael G. Collins, October Term, 1896 – Embracing Due Process, 45 Am. J. Legal Hist. 71 (2001). 41 U.S. 1 (1842). 149 U.S. 368 (1893). Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Illustrating its continuing use of selective incorporation after Erie, the Court decided that conflict of laws rules should not be incorporated into federal common law, Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487 (1941), but that limits on personal jurisdiction should remain constitutionalized. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Similarly, Erie determined that the old “law merchant,” a part of customary international law and “general” law, had been applied beyond the limits of federal judicial power, but Clearfield Trust Co. v. United States, 318 U.S. 363 (1943), held that one part of that “law merchant” lay within federal power and remained an area of “federal” common law. Again, the Court had treated the act of state doctrine as a matter of “general” law in Underhill v. Hernandez, 168 U.S. 250 (1897), but it incorporated that doctrine into federal common law in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Erie, 304 U.S. at 78. The Constitution grants Congress authority to legislate over customary international law. U.S. Const. art I, § 8, cl. 10.

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incorporate elements of customary international law whenever those elements involve issues that fall within areas of federal constitutional authority.31

III. Conclusion Professor McGinnis is surely right that Sosa, like Erie and so many other constitutional decisions, leaves many questions unanswered. The Court inevitably deals with complex and far-reaching issues incapable of full and final resolution. Legal materials, moreover, are frequently inadequate to answer the novel and difficult questions that our world continually generates. We rely unavoidably on the hope of wisdom in the Court. 31

The old “general” law areas of admiralty, interstate controversies, constitutional limitations on government, and judicial jurisdiction over persons and things all remain recognized areas of federal law, although their content has been changed and their foundations placed on diverse statutory and constitutional provisions. Further, the Court recognized an analogous type of federal law rooted implicitly in constitutional and statutory sources involving the national government’s powers over foreign relations that remains in force today. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); United States v. Belmont, 301 U.S. 324 (1937).

V.C

International Law and Constitutional Interpretation after 2000

Main Essay International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity Mark Tushnet∗

Supporting the proposition that deprivation of citizenship “has grave practical consequences,” Justice Arthur Goldberg wrote: “The drastic consequences of statelessness have led to reaffirmation in the United Nations Universal Declaration of Human Rights, Article 15, of the right of every individual to retain a nationality.”1 Justices Potter Stewart and Byron White dissented, but did not criticize the reference to international law. As the chapters in this book show, the U.S. Supreme Court has routinely referred to international law in cases interpreting the Constitution throughout the nation’s history, without the references occasioning controversy for departing from accepted standards of constitutional interpretation.2 In light of this history, the fact that references to non-U.S. law in Lawrence v. Texas and Roper v. Simmons provoked a strong critical response is striking.3 The reaction, not the references, illustrates a change in the role non-U.S. law plays in constitutional interpretation – or, more precisely, in discourse about constitutional interpretation. A practice that occasioned no significant controversy for two centuries did so early in the twenty-first. One possible explanation, of course, is that Lawrence and Roper referred to non-U.S. legal materials in a different manner from the earlier cases.4 In the discourse ∗ 1 2

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William Nelson Cromwell Professor of Law, Harvard Law School. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 161 n.16 (1963). See also Steven Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005) (demonstrating the persistent practice of referring to non-U.S. materials in constitutional interpretation). For a discussion of some of the proposals offered by politicians, see Mark Tushnet, The “Constitution Restoration Act” and Judicial Independence: Some Observations, 56 Case W. Res. L. Rev. 1071 (2006). The politicians were exclusively conservatives, and their proposed legislation condemning references to non-U.S. materials got nowhere in Congress. Nor did a proposed constitutional amendment to similar effect. See Nicholas Quinn Rosenkranz, An American Amendment, 32 Harv. J. L. & Pub. Pol’y 475–82 (2009); House Resolution on the Appropriate Role of Foreign Judgments in the Interpretation of the Constitution of the United States: Hearing Before the Subcomm. on the Constitution, H. Comm. on the Judiciary, 109th Cong., July 19, 2005 (Statement of Nicholas Quinn Rosenkranz, Prof. of Law, Geo. U. L. Center) (CIS-No.: 2005-H521–48) (describing and endorsing the proposal). For a discussion of one change associated with the practice that unquestionably occurred, see infra pp. 512–13. Another explanation might be that the practice went unexamined until recently and on examination proves to be a bad one deserving the criticism directed at Lawrence and Roper, but also (implicitly) at the prior cases, such as Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that engaged

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that has developed, Lawrence and Roper “used” non-U.S. materials differently and inappropriately. Consider here the way in which Supreme Court nominee Sonia Sotomayor addressed a question about the “use” of non-U.S. materials in constitutional interpretation. Responding to Senator Tom Coburn (R-OK), she said, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Pressed by Senator Coburn, she continued: [T]here’s a public misunderstanding of the word “use.” And what I was talking about, one doesn’t use those things in the sense of coming to a legal conclusion in a case. What judges do – and I cited Justice Ginsberg – is educate themselves. They build up a stor[e] of knowledge about legal thinking, about approaches that one might consider. But that’s just thinking. It’s an academic discussion when you’re talking about – thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a – if – if there’s a citation to foreign law, that’s driving the conclusion. In my experience, when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.5

Here nominee Sotomayor endorsed the practice that Senator Coburn and others have criticized. And yet, her position, as she emphasized, does not involve the “use” of nonU.S. materials in the tendentious sense the practice’s critics have given it.6 A careful description of the way in which Lawrence and Roper referred to non-U.S. law shows that the explanation that recent references to non-U.S. materials differ from earlier ones is unavailing: Lawrence and Roper did not “use” non-U.S. materials in a way that departed from established practices.7 Professor Paul Stephan describes Justice Goldberg’s reference to the Universal Declaration of Human Rights as a “rhetorical flourish,”8 and

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in the practice. For a brief discussion of Youngstown, see infra p. 511. This essay is not the place to engage the various criticisms that have been directed at the practice on the merits, although I touch on some that seem to me most relevant to my interest, that is, the recency of the criticism. For some more general comments on the merits of the criticisms, written before a fair amount of the critical literature was published but anticipating some of it, see Mark Tushnet, When is Knowing Less Better than Knowing More?: Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law, 90 Minn. L. Rev. 1275 (2006). Verbatim Transcript, July 15, 2009, Senate Committee on the Judiciary, Committee Hearing on the Nomination of Judge Sonia Sotomayor to Be an Associate Justice of the U.S. Supreme Court, 2009 WL 2039064. Nominee Sotomayor’s discussion does not, it seems to me, support the conclusion that the critics of references to non-U.S. materials have won the day. In one of the rare instances when references to such materials were relevant, the Court’s majority made them, in finding categorically unconstitutional the imposition of life sentences without the possibility of parole for offenders who committed non-homicide crimes while juveniles. Graham v. Florida, 130 S. Ct. 2011 (2010). The structure of the Court’s opinion, written by Justice Kennedy, was the same as that in Roper, which was cited at the relevant points in the opinion: an examination of domestic practices followed by the majority’s independent judgment on whether such sentences were disproportionate, with a brief discussion afterward of how the conclusion already reached was supported by practices around the world and an international convention to which the United States is not a party. Given this volume’s focus, it is worth noting that the non-U.S. legal materials that occasioned the recent controversy fall into two categories. One is international law, the other comparative constitutional law. The purported problem of selectivity or “cherry-picking” in the use of non-U.S. materials, which I discuss later, arises almost exclusively in connection with the latter category and not with references to international law, this volume’s primary subject. See Chapter 10, p. 343.

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that is an apt description of the references to non-U.S. materials in Lawrence and Roper.9 Any explanation of the recent controversy must rest on something new in constitutional discourse. After showing that Lawrence and Roper did not “use” non-U.S. materials in any distinctive or even interesting sense, I discuss two reasons for the reaction, connecting them to changes in the overall universe of constitutional discourse. Justice Anthony Kennedy’s opinion in Lawrence v. Texas turned to mentioning nonU.S. materials after a long (as these things go) survey of the status of laws against homosexual sodomy in the United States. Discussing not the majority opinion but Chief Justice Warren Burger’s concurring opinion in Bowers v. Hardwick, Justice Kennedy began by quoting Burger’s statement: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.”10 This “sweeping” assertion, as Justice Kennedy called it, was called into question by recent developments in the United States, such as the position taken in 1955 by the American Law Institute. Only after that did Justice Kennedy mention non-U.S. materials: the Wolfenden Report of 1957 and a 1981 decision by the European Court of Human Rights (ECtHR). These references supported a claim about the facts regarding the legal status of anti-sodomy legislation in Western civilization: the ECtHR decision showed that “the premise in Bowers” that “the claim put forward was insubstantial in our Western civilization” was false.11 This is not even nose-counting, that is, finding out how many other nations support a claim. It is demonstrating that a universal claim or near-universal claim is false by locating a significant counterexample. Justice Kennedy returned to ECtHR decisions a few paragraphs later, but again to counter an argument he believed was made in Bowers and not as independent support for the Court’s conclusion: “To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere.”12 Justice Kennedy seems to be noting that Bowers mistakenly referred to non-U.S. materials to support its conclusions – mistakenly not as a matter of method perhaps, but mistakenly as a matter of fact. In an odd way, this could be taken as a disclaimer of the relevance of non-U.S. material to interpreting the U.S. Constitution, an indication that at least casual references to such material can lead to errors. Justice Kennedy also wrote the majority opinion in Roper. The opinion began with a description of the doctrinal structure the majority thought had been developed in prior Eighth Amendment cases.13 That structure had two components. The first asked courts to determine whether objective measures indicated in the courts’ judgment a national 9

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See also Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring) (citing the International Convention on the Elimination of All Forms of Racial Discrimination to support the proposition that “raceconscious programs ‘must have a logical end point’”). This truly is no more than a rhetorical flourish – notably, in the service of limiting governmental power to adopt permanent programs of affirmative action. Lawrence v. Texas, 539 U.S. 558, 573 (2003) (referring to Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (Burger, C.J., concurring)). Id. at 573. Id. at 576. With respect to references to non-U.S. law, Justice Scalia’s dissent criticized only this passage, but solely because as he read Bowers that decision did not “rely on” values widely shared in Western civilization to any extent. See Lawrence, 539 U.S. at 598 (Scalia, J., dissenting). Roper v. Simmons, 543 U.S. 551, 564 (2005) (“The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. These data give us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”).

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consensus with respect to the challenged practice. On its face this component implicates only U.S. materials; indeed, Justice Kennedy’s opinion referred only to domestic materials in his discussion of this component. The second component required the courts to make an independent judgment – independent, that is, of legislative judgments – on the question whether a punishment was disproportionate. The majority exercised that judgment in a section concluding that the death penalty was a disproportionate punishment for offenders who killed when they were juveniles.14 This section too did not refer to non-U.S. materials.15 Then the opinion contained a section referring to non-U.S. materials. Its purpose was to “find[] confirmation” for the already reached independent judgment about whether the death penalty for juvenile offenders was disproportionate. This section’s second sentence said that the “reality” that no other nation “gave official sanction” to the penalty “does not become controlling.”16 I take this to mean that the practices of other nations would not, standing alone, justify invalidating the death penalty for juveniles in the United States. But, Justice Kennedy’s opinion suggested, the fact that many other legal actors had concluded that their systems of criminal justice could be administered appropriately without that penalty provided some reason to think that the independent judgment already reached was correct or at least rationally defensible. Compared to references to non-U.S. materials in prior generations of constitutional interpretation, the references to such materials in Lawrence and Roper are weak tea indeed.17 The materials are not treated as authoritative in the Raz-ian sense of providing reason-independent grounds for adopting their conclusions in the face of counter-reasons rooted in U.S. law.18 Fred Schauer has offered one of the better arguments against references to non-U.S. materials in this nonauthoritative way.19 Why make such references to support a conclusion already reached unless one is prepared to rely on non-U.S. materials to reject a conclusion reached on the basis of U.S. materials? So, for example, when in Roper Justice Kennedy turned to non-U.S. materials to see if they confirmed the independent judicial judgment he had already reached, he had to be open to the possibility 14 15

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Id. at 564–75. Unless one counts as referring to such materials as social science studies, some of which might have involved studies of young people outside the United States. Justice Kennedy did not mention that feature of the cited studies, if indeed that was a feature of some. Id. at 575. Perhaps critics of the references to non-U.S. materials in Roper believe that the sections preceding those references are so weak and unpersuasive that the references must be doing the work of tipping the decision to a finding of unconstitutionality. The structure of such a position is a bit puzzling. It requires one to reject the Court’s own characterization of both parts of the analysis offered as justifying the outcome while treating as dispositive a discussion that the Court characterized as merely confirmatory. Perhaps the majority was misrepresenting the true predicates of its decision, but one would need more evidence of that than the mere unpersuasiveness – if such it be – of the arguments the Court offered to support its decision. Internationally oriented nongovernmental organizations (NGOs) have argued, sometimes in Supreme Court amicus briefs, that some aspects of the administration of capital punishment in the United States are inconsistent with contemporary norms of customary international law. For a summary of these arguments, see International Bar Association, “The Death Penalty Under International Law,” http://www.ibanet.org/ Human Rights Institute/About the HRI/HRI Activities/death penalty resolution.aspx. For a representative brief, see Brief Amicus Curiae of the American Bar Association, Roper v. Simmons, No. 03–633 (2004). No one on the Court has accepted such arguments and, in my view, properly so. The arguments are advocates’ claims, aimed I think at laying the groundwork for some future decisions when the description of the relevant norms as customary international law is more plausible. Frederick Schauer, Authority and Authorities, 94 Va. L. Rev. 1931 (2008).


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that they did not and to the possibility that if so he should reconsider that judgment.20 Yet perhaps Justice Kennedy was indeed open to those possibilities; we certainly have no reason to believe that he was not. Nor would that openness necessarily involve mere nose-counting or reliance on the authority of the non-U.S. decision makers. I assume that the process would be a straightforward application of judicial reason: having reached a tentative conclusion, one looks around to find out whether a fair number of other people have reached a different conclusion, and if one finds that enough people, whose judgment one has no good reason to question, have done so one examines why they did so – their reasons – to find out whether those reasons are good enough to displace the judgment one is testing. That is, behind a reference to non-U.S. materials that superficially looks like nose-counting is reason-giving of the ordinary judicial sort.21 Perhaps unsurprisingly, given the nature of constitutional reasoning in the United States, Lawrence and Roper illustrate both continuity and change in the role non-U.S. materials play in constitutional interpretation. Their quite limited references to non-U.S. law are entirely consistent with a great deal of prior practice and indeed are more limited than the uses made of non-U.S. legal materials in other eras. Justice Robert Jackson’s opinion in the Steel Seizure case, for example, might fairly be read as relying on and not merely referring to non-U.S. law. After setting out his famous three-part scheme for analyzing the lawfulness of actions by the Executive, Jackson turned to the “experience” of “many modern nations” with the “balance between liberty and authority” in “war and economic crises,” saying that it “may not be irrelevant to the argument here.” Three brief paragraphs on Germany, France, and Great Britain preceded Jackson’s suggestion that the “contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere,” but that “emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.”22 For Jackson legal rules adopted elsewhere, about the Executive’s power to declare that emergency conditions warranted departures from nonemergency rules, had unfortunate results. He inferred, weakly of course, a causal connection between the rules and the results and used that connection as a reason counseling against adopting a similar rule in the United States. The references to non-U.S. law in Lawrence and Roper are, in my view, significantly less consequential for the Court’s choice among competing interpretations of the constitutional provisions at issue. What has changed is that a practice that was entirely routine throughout U.S. constitutional history became controversial at the turn of the twenty-first century. Indeed, one might note two changes in the practice of referring to non-U.S. materials in constitutional interpretation: those references became more controversial at a time when they became less consequential. I suggest that there are two reasons for these changes: 20

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I note, however, that as Chapter 1 points out, Chief Justice Taney referred to international law in discussing the legal status of slavery, while adding that his conclusion would not change if international law was different. See Chapter 1, pp. 43–44. When that is true, the references to non-U.S. materials are almost by definition rhetorical flourishes adding nothing to the Court’s reasons for reaching its conclusion. Comments on an early version of this essay suggested that non-U.S. law might have affected the Court’s decision to place Roper on its docket. I find that suggestion quite plausible. The decision to grant review is expressly discretionary and not law-bound, however, and so this effect of non-U.S. law cannot be described as an effect on constitutional law. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650–52 (1952) (Jackson, J., concurring).

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one quite obvious and well within my expertise, the rise of originalism; the other more speculative and outside it, a concern for the place of the United States in the modern international order. These reasons can be best understood by noting several areas in which references to non-U.S. materials have become so deeply embedded that no one notices that U.S. constitutional interpretation rests ultimately on such sources. As noted in prior chapters, the doctrine that the United States has plenary power over immigration and naturalization ultimately rests on the law of national sovereignty developed in classical international law.23 The plenary power doctrine, although criticized by academics,24 remains vibrant in constitutional law as applied by the courts. Similarly, Munaf v. Geren relied on the international law of sovereignty to hold that the executive branch of the U.S. government had the power to transfer a U.S. citizen from its custody to that of the Iraqi government for criminal prosecution under Iraqi law, even if such a transfer “was likely to result in torture.”25 No one objected to the Supreme Court’s reliance on international law to justify this result. As noted in Chapter 8, the first “Brandeis Brief” cited information about law and experience in other nations to support the proposition that limiting the hours that women could lawfully work outside the home should be held constitutional,26 and that brief has become a model for modern advocacy. Why, then, was the reference to foreign law in Lawrence controversial? There, as in the first Brandeis Brief, the reference was made for the facts about what the law elsewhere was, not to provide independent support for an interpretation of the U.S. Constitution. The obvious reason is the articulate advocacy, if not the consistent practice, of a particular approach to constitutional interpretation that generally rules out any of the uses of non-U.S. materials that had historically occurred.27 That approach is of course originalism, in pretty much any of its variants, taken as the exclusive method of constitutional interpretation.28 Originalism rules out even mild uses of non-U.S. materials except to the extent that original understandings (or whatever formulation of originalism is in play) license later decision makers to use post-adoption non-U.S. materials.29 The 23 24 25

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See Chapter 4, pp. 154–55. See, e.g., Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion, 100 Harv. L. Rev. 853 (1987). 553 U.S. 674, 700 (2008). The Court recharacterized this as an allegation of “only the possibility of mistreatment in a prison facility” and relied on the U.S. policy “not to transfer an individual in circumstances where torture is likely to result” to reject Munaf’s claim. The executive branch determined that the Iraqi Justice Ministry “as well as its prison and detention facilities have generally met internationally accepted standards for basic prisoner needs.” Id. at 702 (emphasis added) (internal quotations omitted). See Chapter 8, pp. 272–73. Their commitments to originalism explain the disclaimers John Roberts and Samuel Alito made as nominees about referring to non-U.S. materials; the disclaimers provide no basis for thinking that the criticisms leveled against the practice influenced their position or indeed that the criticisms are well founded. For a discussion of exclusive originalism, see Mitchell Berman, Originalism Is Bunk, 84 N.Y.U. L. Rev. 1 (2009). I would qualify the point here modestly, by noting that those who advocate exclusive originalism typically make an exception for decisions that follow almost ineluctably from well-established precedents that were not themselves originalist at their inception, and they sometimes include an exception for the precise holdings of some non-originalist precedents, although the criteria for including specific precedents in the latter exception are rarely clearly specified. Other than those materials, as Justice Scalia has said, available to the Framing generation. See “The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer,” 3 Int’l J. Const. L. 519, 525 (2005).


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qualification regarding the possibility that originalism licenses the use of such materials matters for one’s understanding of Roper, where criticism of the reference to non-U.S. materials relies on a substantive disagreement about the Eighth Amendment’s meaning. The majority takes the view that originalism as applied to that Amendment does license reference to contemporary non-U.S. materials, and the dissenters disagree.30 This is an ordinary disagreement about a particular substantive interpretation of a specific constitutional provision occurring within an agreed-on interpretive framework, and it is a distraction to focus on the references to contemporary non-U.S. materials. Putting that qualification to one side, we can focus on one important feature of originalism (again in any of its variants). For originalists the consequences of adopting one rather than another interpretation of a particular constitutional provision (or of some structural feature that grounds a number of provisions) are generally irrelevant.31 Here it is useful to juxtapose two statements by Justice Antonin Scalia. His opinion in District of Columbia v. Heller included this in its final paragraph: “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. . . . [T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.”32 In Boumediene v. Bush he observed that the “consequence” that “more Americans [would] be killed . . . would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.”33 I take these two quotations to mean together that consequences are relevant if made so by a constitutional provision properly interpreted, but are irrelevant when policy choices are taken off the table by constitutional provisions properly interpreted. So, for example, the use Justice Jackson made of non-U.S. materials in the Steel Seizure case was improper on originalist premises. Many of those who find the traditional practice of referring to non-U.S. materials untroubling are simply not exclusive originalists. Here, too, the disagreement is not distinctively about the propriety of using non-U.S. materials; rather, it is about different approaches to constitutional interpretation. It is probably worth mentioning two additional and related points occasionally made in the discussion of references to non-U.S. materials, although in my view they do not really motivate anyone’s opposition to the practice. These are the “cherry-picking” and “arcane knowledge is expensive” concerns. As scholars of comparative law know, it is difficult to determine when a comparison between one legal system’s rules and another’s is likely to be fruitful for any purpose other than simply acquiring knowledge. Particular rules are inserted into complex legal systems and may not travel well without their companions. Justice Stephen Breyer’s reference to practices of federalism in Germany to show that a vibrant federalism was possible even when the national government had the power to commandeer the resources of subnational governments overlooked the other structural features of German federalism that either offset the adverse effects of the power to commandeer or provided strong reasons to believe that commandeering would occur 30

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Underlying the Court’s modern Eighth Amendment jurisprudence is the proposition that the Amendment requires that courts apply “evolving standards of decency,” Trop v. Dulles, 356 U.S. 86, 101 (1958) (opinion of Warren, C.J.). In my view, this proposition – articulated in a paragraph referring to the Magna Carta and the Declaration of Rights of 1689 – is an originalist one. Here too the qualification is necessary to take account of constitutional provisions as to which the original understanding (or whatever) licensed later decision makers to take consequences into account. District of Columbia v. Heller, 554 U.S. 570, 636 (2008). Boumediene v. Bush, 553 U.S. 723, 828 (2008) (Scalia, J., dissenting).

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only when truly necessary.34 The U.S. federal system lacks those other structural features, such as direct representation of subnational governments in one house of the national legislature. As a result, one cannot infer much if anything about the relationship between commandeering standing alone and the vibrancy of federalism. Further, particular rules and rule-complexes often are expressions of something distinctive about a nation’s legal and general culture, to the point where general inferences may be nearly impossible. Even when we are dealing with rules that have been widely adopted, we have to worry about the possibilities that the rule is honored in the breach and that the rule is widespread for reasons other than its intrinsic merit, such as pressure on a domestic legal system from external sources. Another version of the cherry-picking objection arises in connection with Roper’s use of non-U.S. materials to confirm a judgment already reached. The suspicion – it can be only that – is that Justice Kennedy would not have referred to those materials if they had shown reasonably widespread “official sanction” for the juvenile death penalty around the world. Critics note, for example, that proponents of the right to choose with respect to abortion do not discuss the relevant law outside the United States because, they say, that law shows that the United States has taken a position at the tail of the distribution of laws dealing with abortion and choice.35 These concerns do not make use of non-U.S. materials pointless in principle, but they do suggest that the game might not be worth the candle. And yet that point could be made as well about nearly every approach to constitutional interpretation, including originalism itself. Cherry-picking has another name in discussions of originalism: “law-office history.” It is common as well in the presentation of social scientific materials to those courts that think such materials relevant to constitutional interpretation. And it is important to emphasize that this sort of selectivity is characteristic of, and inextricable from, all forms of constitutional argument. It is not that “law-office history” is bad history whereas originalism relies on good history,36 that selective citation to social science materials is bad social science, or that references to non-U.S. materials always involve cherry-picking.37 Rather, the legal discourses of originalism and social science in constitutional interpretation are defined by their selectivity. Cherry-picking is simply the way in which a general characteristic of constitutional discourse manifests itself in a specific form. Criticism of reference to non-U.S. legal materials on “cherry-picking” grounds is yet another version of the general disagreement between conservatives and liberals over constitutional interpretation. Considering the objections on the merits, we have a 34

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Printz v. United States, 521 U.S. 898, 976–77 (1997) (Breyer, J., dissenting), criticized in Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union 214 (Kalypso Nicolaidis & Robert Howse eds., 2001). But see Vicki C. Jackson, Constitutional Engagement in a Transnational Era 210–22 (2009) (suggesting that this characterization of the position of the United States relative to the rest of the world is overstated). Originalists sometimes claim that they produce good history, while their opponents offer “law-office history.” The competing interpretations of originalist materials in Heller, 554 U.S. 570, should be enough to show the inaccuracy of such claims presented as global ones. Professional historians disagree among themselves about whether the majority or the dissent got the history “right.” See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-in-Law, 71 Chi.-Kent L. Rev. 909 (1996).


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straightforward solution to the problems there, which surely is available in connection with non-U.S. materials as well. The solution is the adversary system: one side cherry-picks the data and presents that favorable to it, and the other side cherry-picks the data and does the same, only with different evidence. One side’s law-office history is countered with history from another law office.38 And we expect our judges to have the ability to extract from these materials something useful – or to disregard them when the materials are not useful. I doubt that there is any reason to think that the adversary system would be unable to do the same for non-U.S. materials. The adversary system might not function well if one side unilaterally disarms, that is, refuses as a matter of principle to address material presented by the other side. That seems to me the case with respect to references to non-U.S. materials: critics of the practice criticize the practice in general and do not address the accuracy of their opponents’ presentation of non-U.S. materials. Committed to originalism, the “conservative” side has refrained from referring to non-U.S. materials as a matter of principle even where doing so might have bolstered its position. For example, conservatives have moved gradually toward the position that unlawfully seized evidence should not be excluded from trial where the illegality was not deliberate (was “in good faith”).39 They have defended this approach by informal cost-benefit calculations. They might have supported it as well by noting the similarity between the approach they urge and the position taken in other jurisdictions, where exclusion is the result only if the illegal actions by police were egregious.40 It is as if adherents to theories of living constitutionalism refused as a matter of principle to try to show that the originalist arguments offered about some specific constitutional provision failed to take account of other historically relevant materials. The adversary system would not work well then either, but it is the strategy of principled refusal to engage in an argument that weakens the adversary system, not the fact that one side refers to non-U.S. materials. To use one group’s principled refusal to refer to non-U.S. materials as a ground for criticizing such references by others is to give the first group a form of heckler’s veto. Of course, introducing any new source for interpretation, which judges have to evaluate for credibility and the like, increases the cost of adjudication. The pages in a brief devoted to non-U.S. materials cannot be devoted to social science evidence or originalist materials. Here too I doubt that there is anything special about non-U.S. materials. Over the past generation, judges have had to learn about economic approaches to areas of law other than antitrust and regulated industries, and they have done so, at least to the point that they are no worse at thinking in economic terms than they are at thinking in originalist or any other terms.41 So too with learning to think sensibly about non-U.S. materials presented to them as relevant to constitutional interpretation. To this point I have discussed the change in the degree to which use of non-U.S. materials in constitutional interpretation is controversial as parasitic on approaches to constitutional interpretation and particularly on originalism. My more speculative 38 39 40

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I doubt that anyone thinks that the recent development of amicus briefs from “historians” or “social scientists” provides a real alternative to cherry-picking and law-office history. See, e.g., Herring v. United States, 129 S. Ct. 695 (2009). For a somewhat dated overview, see Hedieh Nasheri, The Exclusionary Rule: Differing Trends in Canada and the United States, 21 Crim. Just. Rev. 161 (1996). See also Symposium, The Future of the Exclusionary Rule: American and International Perspectives, Sw. J. Int’l L. (forthcoming). That may not be a high bar to get over, but it plainly is the right one.

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suggestion is that references to non-U.S. law became controversial because they provoked anxieties about the nation’s position in the international community. The references to non-U.S. materials in recent decisions may arise from a vague cosmopolitanism among legal elites, not strong enough to support treating such materials as real “sources” of law. That may account for the Court’s eclecticism in referring to treaties and decisions by transnational and domestic courts without attending to the different status these various materials have in international and domestic law. I begin my speculation with another legal point. Although in earlier times the public may have paid attention to the precise rules of international law on which the Supreme Court relied, today the discussion of uses of non-U.S. legal materials takes place entirely at the level of method, not at the level of specific rules. In addition, in prior eras references to non-U.S. law often occurred as the courts dealt with relatively arcane matters. So, for example, the U.S. Supreme Court relied on but extended international law in interpreting the clause giving Congress the power to “define and punish . . . Offenses against the Law of Nations.”42 More tellingly, I think, when the references occurred in decisions dealing with matters central to then-current controversies such as slavery and American imperialism, there was little or no controversy over the fact of the references, because public concern for the merits dominated its concern for interpretive method. Lawrence and Roper dealt with hot-button social issues near the heart of the culture wars of the late-twentieth-century United States.43 Ordinary citizens were likely to know what the Supreme Court did, and were likely to have strong views on the merits. What changed was that some political entrepreneurs believed that challenging the decisions on the merits would be less successful than challenging them on grounds of interpretive method. These entrepreneurs were ready to use the decisions’ references to non-U.S. materials as weapons in the culture wars. What might undergird their political calculations? Again, I offer some speculations that I think point in the right direction. The shift from merits to method was connected to a well-known change in international law itself. From being a subject primarily (although never exclusively) about relations among states, international law has become a source of some law applicable to relations between states and their citizens. As such, international law competes with or supplements domestic law, including domestic constitutional law. The areas in which international law is today directly relevant to constitutional interpretation are more numerous than at earlier times. The effect is that references to non-U.S. materials in practice systematically occur in connection with rights-“expanding” decisions.44 Earlier references to non-U.S. materials, as in discussions of the “traditions of the Anglo-American people” to determine which criminal procedure guarantees were fundamental, tended to reject claims that rights had been violated. And, as Chapter 8 argues, that description might fit references to international law more generally: they supported more rather than less expansive exercises of government power.45 Earlier I suggested that “using” non-U.S. materials honestly entails a willingness to do so when they point in a direction different from that adopted 42 43 44 45

See United States v. Arjona, 120 U.S. 479 (1887), discussed in Chapter 4, pp. 147–48. I am tempted to place many of the descriptors in this sentence in scare quotes because I believe that commentators often exaggerate the significance of both the issues and the culture wars. I use scare quotes here and later to indicate that I have no position on whether the decisions actually do expand rights properly understood. Chapter 8, pp. 257–58.


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in the case at hand. From that it follows that “using” non-U.S. materials solely when they authorize expansive exercises of government power is as unprincipled – or is as merely rhetorical – as “using” them solely when they support limitations on government power. Or, to put the point another way, perhaps one can criticize recent “uses” of non-U.S. materials on the ground that they depart from a prior practice of “using” such materials solely in support of expansive government power – but then it would seem pretty clear that the true basis for the criticism is not the “use” of the non-U.S. materials as such, but the service to which those materials were put. The criticism is just a particular application of a more general critique of so-called judicial activism, and it is no more or less interesting than any other application of that critique. In what way might the criticism of “using” non-U.S. materials to “expand” rights have some content independent of the general critique of judicial activism? I suspect that the suggestion that other nations might have “better” systems of rights protection than does the United States raises cultural anxieties among some. That suggestion might be wrong, of course. The balance of social interests embodied in a system of rights protection is inevitably complex. It may make sense for citizens in each reasonably well-functioning nation to have at least a presumption in favor of their own nation’s system, on the ground that that system probably does a decent job of taking into account the range of considerations, both universal and nation-specific, that should affect the balance. The criticisms of references to non-U.S. materials, however, seem to have a stronger tone than would be appropriate were the only question whether those materials were enough to overcome the presumption in favor of the domestic system. Consider in this connection that no significant controversy arose when Justice Byron White referred to the “climate of international opinion” in holding unconstitutional the imposition of capital punishment for simple rape.46 The recent controversy arises, perhaps, because the references seem to be somewhat threatening, not to U.S. sovereignty47 but to national identity.48 It might be that such references in the past were not threatening because the American people knew that the United States was just one nation among many, valorized by us because it was ours, but otherwise no different from other nations. We then experienced a half-century of what Henry Luce labeled the “American Century,”49 in which the United States was, we believed, not one among many, not even first among a group of equals, but first full stop. References to non-U.S. materials suggest – accurately in the eyes of some, erroneously in the eyes of others – that we are again one among many.

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Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (White, J., announcing the judgment of the Court). For a similar reference, see Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982). For a discussion of why sovereignty-based objections to such references are misplaced, see Mark Tushnet, Transnational/International Constitutional Law, 37 Loy. L.A. L. Rev. 239 (2003). For a comment on resistance to reference to non-indigenous legal materials in Malaysia and Singapore as an expression of national self-identity, see Li-Ann Thio, Beyond the “Four Walls” in an Age of Transnational Judicial Conversations: Civil Liberties, Rights, Theories, and Constitutional Adjudication in Malaysia and Singapore, 19 Colum. J. Asian L. 428, 431 (2006) (“When the four walls doctrine was invoked by Malaysian courts and adopted in 1994 by the Singaporean Chief Justice in Colin Chan v. Public Prosecutor, these decisions were each strategic moves to orientate future public law developments along an ‘autochthonous,’ localized, or indigenous track, particularly in relation to civil liberties jurisprudence.”) (citation omitted). Henry R. Luce, The American Century, Life, Feb. 17, 1941, at 61, 65.

Response Essay Why Constitutional Comparativism Is Different: A Response to Professor Tushnet Roger P. Alford∗

Professor Mark Tushnet is one of this country’s leading scholars of comparative constitutional law, and his short essay reflects the traditional internationalist position in favor of constitutional comparativism. He defends Lawrence v. Texas1 and Roper v. Simmons2 as unremarkable cases consistent with a long line of Supreme Court precedent. The only thing remarkable about these cases, Professor Tushnet argues, is the tempest in a teapot they have generated.3 I offer here a few brief reflections on where I disagree with Professor Tushnet, focusing on two key issues: (1) why the problem of selective use of comparative material is so intractable and (2) why the case for constitutional exceptionalism is not based on a belief in American superiority. Given space limitations, I do not address other areas of disagreement. For example, I do not address Professor Tushnet’s claim that scholarly criticism of constitutional comparativism is motivated by an originalist agenda.4 As I have written elsewhere, the most thoughtful critics of constitutional comparativism are not movement conservatives, but respected scholars who present cogent concerns that have nothing to do with originalism.5

I. The Selectivity Problem One of the most common criticisms of constitutional comparativism is that it is used selectively, both in terms of when it is used and in terms of what is borrowed from abroad. ∗ 1 2 3 4 5

Professor of Law, Pepperdine University School of Law. 539 U.S. 558 (2003). 543 U.S. 551 (2005). Mark Tushnet, International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity, supra pp. 507–17. Id., pp. 512–13. See Roger P. Alford, Four Mistakes in the Debate on “Outsourcing Authority,” 69 Alb. L. Rev. 653, 656–59 (2006) (discussing concerns expressed by, inter alia, Richard Posner, Charles Fried, Ernest Young, Daniel Halberstam, Mary Ann Glendon, Jed Rubenfeld, Michael Ramsey, and Ken Anderson). More recent scholarly criticism includes the likes of Nicholas Rosenkranz, Frederich Schauer, Stephen Gardbaum, and Eugene Kontorovich. See Nicholas Quinn Rosenkranz, An American Amendment, 32 Harv. J. L. & Pub. Pol’y, 475, 476 (2009); Frederick Schauer, Authority and Authorities, 94 Va. L. Rev. 1931, 1954– 56 (2008); Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391, 409–11 (2008); Eugene Kontorovich, Disrespecting the “Opinions of Mankind”: International Law in Constitutional Interpretation, 8 Green Bag 2d 261, 265 (2005).

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Professor Tushnet recognizes that selective use of comparative material is a legitimate concern, but fails to appreciate the full extent of the problem. He concedes, for example, that the Supreme Court’s abortion jurisprudence is notably lacking in comparative references, suggesting that “the United States has taken a position at the tail of the distribution of laws dealing with abortion and choice.”6 But the cherry-picking objection, he argues, “could be made . . . about nearly every approach to constitutional interpretation,” including the “law-office history” of originalism.7 He suggests that “comparativism-lite” is no different from “history-lite,” and therefore the problem is both overblown and easily corrected by effective advocacy. It is odd, of course, to defend one poor methodology by saying there are other poor methodologies. The persuasiveness of one argument is not enhanced by knowing that there are other bad arguments. But it also is wrong to compare one method with the other. Recourse to American history is an uncontroversial method of constitutional interpretation, and Justices across the ideological spectrum resort to it to bolster their position. History may be done poorly or done well, but the fact that it is done is beyond dispute. By contrast, advocates of judicial restraint view constitutional comparativism as inherently suspect, which means they will not resort to it even if it advances a preferred outcome. The result is a methodological commitment to comparativism by one group of judges, who may exercise it selectively, and a methodological aversion to it by another group of judges, who will not use it even if it bolsters their position on the merits. It is not surprising, for example, that in Gonzales v. Carhart,8 neither Justice Ruth Bader Ginsburg nor Justice Clarence Thomas cited evidence from abroad showing worldwide rejection of a right to perform partial birth abortions.9 The opportunities for the misuse of history are immeasurably fewer than the opportunities for the abuse of comparative material. The data points of American history are finite and fixed, allowing for low-dimensional comparisons between past and present that are both deep and narrow. Constitutional comparativism, by contrast, suffers from a “curse of dimensionality” that raises serious doubts about its feasibility. As I have written elsewhere, A comparison of a few countries is prone to error and selection bias. A comparison of numerous . . . variants in many countries using multiple contextual factors [such as text, structure, history, precedent, and national experience] offers a far-more-accurate picture of [constitutional] guarantees throughout the world. But as a practical matter, utilizing a large-data-set, high-dimensional methodology is unfeasible. Comparative constitutional analysis is cursed with the inability to conceptually capture rich associations whose relationships are too complex to be appreciated using traditional methods and simplistic comparisons.10

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Tushnet, supra note 3, p. 514. Id. 550 U.S. 124 (2007). See Anika Rahman, Laura Katzive and Stanley Henshaw, A Global Review of Laws on Induced Abortion, 1985–1997, 24(2) Int’l Fam. Plan. Perspect. 56 (1998) (identifying only 5 countries – Canada, Netherlands, North Korea, United States, and Vietnam – out of 152 countries surveyed that allow unrestricted access to third-trimester abortions on demand). Roger P. Alford, Free Speech and the Case for Constitutional Exceptionalism, 106 Mich. L. Rev. 1071, 1081 (2008).

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With constitutional history one is dealing with the same text, the same structure, the same national experience, and the same precedents in comparing the past with the present. With constitutional comparativism one is dealing with many different countries, all having different texts, different structures, different national experiences, different histories, and different precedents. The difficulty in doing such comparison well is of a different order of magnitude. At best one will engage in narrow and deep comparisons (considering all contextual factors for one or two countries) or broad and shallow comparisons (considering few contextual factors for many countries). A judge or advocate will almost never be equipped to engage in broad and deep comparisons. Professor Tushnet further argues that the adversary system offers a solution to the cherry-picking problem. His confidence in this process is misplaced. The common practice of the Supreme Court is to rely on lower courts to crystallize the issues and develop a legal and factual backdrop for the Court to analyze. But lower courts are providing almost no assistance whatsoever when it comes to constitutional comparativism. My recent analysis of more than 10,000 lower court constitutional decisions reveals that fewer than 1 percent rely on foreign or international law.11 From a quantitative perspective, our nation’s lower courts are utterly disinterested in constitutional comparativism. As a consequence, the Supreme Court almost never has any prior lower court analysis to assist it in weighing arguments grounded on comparative or international experiences. Advocates before the Supreme Court are also failing in the task of presenting both sides of constitutional comparativism. Professor Tushnet assumes that the solution to the problem is for each side to cherry-pick and present the data in a manner favorable to its position.12 In this model, each side presents its comparative arguments, the Supreme Court weighs the competing evidence, and appropriate reliance on foreign or international material is achieved. But there is no empirical support for his theory. An electronic search of Supreme Court briefs confirms that this almost never happens.13 If constitutional comparativism occurs at all in Supreme Court litigation, it is almost always done by petitioners (and their amici), or respondents (and their amici), but not by both. In virtually every case the adversarial system is failing to present competing sides of the comparative experience. The consequence is that the Court almost always has an inadequate lower court decision and an inadequate set of briefs when it comes to understanding the foreign landscape.

11

12 13

Roger P. Alford, Lower Courts and Constitutional Comparativism, 77 Fordham L. Rev. 647, 651, 656 (2008) (survey of federal appellate, federal district court, and state supreme court decisions from when Roper was decided in March 2005 to June 2008). Tushnet, supra note 3, p. 515. This statement is based on a survey in SCT-BRIEFS database of Westlaw since Roper was decided in March 2005. For a rare example in which both sides cited comparative material, see Brief of Petitioner, Graham v. Florida, 2009 WL 2159655, at ∗ 64–66 (July 16, 2009) (arguing that United States’ practice of juvenile life without parole is aberrant when compared to practices in other countries); Brief of Respondent, Graham v. Florida, 2009 WL 2954163, at ∗ 42–44 (Sept. 14, 2009) (arguing that there is no binding international law prohibiting life without parole and that data on comparative experiences is flawed and incomplete). For the first time in five years the Court in Graham v. Florida referenced comparative and international law to interpret constitutional civil liberties, but was at pains to emphasize the insignificance of such references. See Graham v. Florida, 130 S. Ct. 211 (2010) (foreign and international law and practice not binding and only relevant after national consensus has been established to confirm the Court’s conclusion or rationale).

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II. A National Superiority Complex? Professor Tushnet concludes his essay by speculating as to why constitutional comparativism has become so controversial. He suggests that critics feel threatened by it because they are convinced that the United States is “not one among many, not even first among a group of equals, but first full stop.”14 By his account, the debate is not about foreign authority, but rather about national identity. Whereas in the past Americans knew that “the United States was just one nation among many,” today cases such as Roper and Lawrence are threatening because they suggest “we are again one among many.”15 This argument is novel but unconvincing. Professor Tushnet could have recognized constitutional exceptionalism for what it is – a theory that “recognizes and celebrates each country’s attempt to optimize its general welfare by balancing competing goods in a manner consistent with its constitutional text, structure, history, precedent, and national experience.”16 Instead, Professor Tushnet offers a diagnosis of a national neurosis. Our nation, it seems, suffers from a superiority complex. We have treated references to foreign authority as “controversial because they provoked anxieties about the nation’s position in the international community.”17 It is curious that this malady was not more evident in other periods in our history, particularly after World War II when we truly were a nation without equal. If fear of foreign authority reflects pride of place as first among nations, then a backlash should have been evident when the Supreme Court decided, say, Adamson v. California18 or Trop v. Dulles.19 Or perhaps our superiority complex is really a defense mechanism in which feelings of superiority overcompensate for true feelings of inferiority.20 If so, then it should have manifested itself in the nineteenth century, when our role in the world was spectacularly average and we were a mere nation among many. If Professor Tushnet is correct that recourse to foreign and international material is “a practice that was entirely routine throughout U.S. constitutional history,”21 he fails to explain why it is only now that we feel threatened. If the debate is really about national identity, we should have been having this argument long ago. One can easily distinguish between the legitimate embrace of constitutional exceptionalism and irrational notions of American superiority. Constitutional interpretation is almost always contextual, and what may be appropriate in one jurisdiction may be inappropriate in another. One need not feel superior to conclude that our approach to free speech or freedom of religion may be appropriate for our nation but imperfect when applied elsewhere. The same is true for other countries.22 14 15 16 17 18 19 20

21 22

Tushnet, supra note 3, p. 517. Id. Alford, supra note 10, at 1083. Tushnet, supra note 3, p. 516. 332 U.S. 46 (1947). 356 U.S. 86 (1958). See, e.g., Walter C. Varnum, Psychology in Everyday Life 146 (2007) (“Contrary to public opinion the superiority complex does not grow out of too much success, but is rather an attempted compensation for an inferiority complex.”). Tushnet, supra note 3, p. 521. Alford, supra note 10, at 1082–86 (discussing constitutional exceptionalism in other countries and the role of constitutional terroir).

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There are, of course, alternative explanations for why Roper and Lawrence are so controversial. The current world of global constitutionalism and international human rights is qualitatively different from that of past decades.23 The proliferation of constitutional courts and international tribunals has created new opportunities and risks. With new human rights norms and constitutional protections abroad, our constitutional guarantees are susceptible to comparison and contrast like never before. In the past, a few faithful friends who had a common British heritage could be relied on to give wise counsel as to their experience with a common problem. Today, when the Supreme Court looks abroad for foreign suitors, they are as plentiful as ever, and many are unworthy of the match. If we legitimize foreign and international materials as authoritative sources for constitutional interpretation, they will easily be misused and manipulated. 23

Alford, supra note 5, at 664–70 (discussing mistakes about history in constitutional comparativism).

Response Essay Judicial Dialogue in Roper: Signaling the Court’s Emergence as a Transnational Legal Actor? Melissa A. Waters∗

In a characteristically thoughtful and original essay, Professor Mark Tushnet contends that Roper v. Simmons is consistent with a long line of U.S. Supreme Court precedent utilizing international sources in constitutional interpretation.1 Given this consistency with prior practice, Professor Tushnet asserts that the controversy over Roper “must rest on something new in constitutional discourse.”2 He finds the “something new” in two sources: the rise of originalism3 and renewed “concern for the place of the United States in the modern international order.”4 In this brief response, I suggest two more sources for the controversy over Roper. The first is an additional “something new in constitutional discourse”: the emerging transnational judicial dialogue among the world’s constitutional courts on human rights issues and the concomitant emergence of constitutional courts as important mediators between domestic and international law. Building on Professor Tushnet’s insights with respect to Roper’s impact on debates over national identity, I ground criticism of the Court’s decision in part on the fear that American judges might become active participants in the dialogue on human rights and that this might have negative consequences for the United States’ so-called national identity. Second, I argue that controversy over Roper is grounded in part on “something new” with respect to the Court’s use of non-U.S. sources. Seen against the backdrop of the emerging transnational judicial dialogue on human rights, Justice Anthony Kennedy’s reliance on nonbinding human rights treaties represented a significant departure from – or at least expansion of – the Court’s prior practice. Thus, both the interpretive method adopted by the Roper Court and its selection of sources help explain some of the controversy surrounding the decision. ∗ 1 2 3 4

Professor of Law, Washington University School of Law. Professor Tushnet’s essay also offers a cogent analysis of references to non-U.S. law in Lawrence v. Texas. In the interest of brevity, this response does not address that discussion. Mark Tushnet, International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity, supra p. 509. See id., pp. 512–14 (discussing originalism). Id., p. 512. See also id., pp. 516–17.

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I. Roper as the Court’s Entry into Transnational Judicial Dialogue on the Death Penalty5 Professor Tushnet rightly points out Roper’s continuity with prior Supreme Court precedent, and he notes that, until Roper, the Court’s references to non-U.S. sources “occasioned no significant controversy for two centuries.”6 In one sense, of course, it should come as no surprise that “a practice that was entirely routine throughout U.S. constitutional history became controversial at the turn of the twenty-first century,”7 for Roper is very much a creature of its time.8 Indeed, Justice Kennedy’s lengthy discussion of “international opinion” on the death penalty could not have been written until fairly recently in the Court’s history. The reason is simple: modern international human rights law itself (including the human rights treaties that serve as the basis for Kennedy’s discussion) is a product of the latter half of the twentieth century. “International opinion” on the death penalty is of particularly recent vintage and is to some extent the product of a robust transnational judicial dialogue among the world’s courts. Beginning in the late 1980s, supranational and national tribunals began to consider the legality of various aspects of the death penalty, taking as their starting point the prohibition on cruel or inhuman punishment (a prohibition commonly found in both domestic and international legal sources).9 In the emerging transnational judicial dialogue that followed, the relationship between legal sources and courts became a synergistic one: international legal norms like the prohibition on cruel or inhuman punishment provided courts with common reference points around which to shape a dialogue. At the same time, that dialogue fleshed out and gave content to these international norms. Thus, through judicial dialogue among international tribunals and domestic constitutional courts, the international prohibition on cruel or inhuman punishment evolved to encompass significant limitations on the death penalty. In addition, as the death penalty dialogue developed, later courts appeared to rely on earlier decisions not simply for comparative law purposes, but as evidence of concrete international legal obligations.10 Thus, the dialogue evidences growing judicial recognition that international law itself is evolving, in part as a result of judicial dialogue. Participants in this dialogue play a key role not merely in internalizing international legal norms but also in shaping the content 5

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10

I explore the development of transnational judicial dialogue on the death penalty and Roper’s place in that dialogue in Melissa A. Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005). Tushnet, supra note 2, p. 507. Other scholars have chronicled the long history of comparative and international law in the work of the Court. See, e.g., Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006); Stephen G. Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005). Tushnet, supra note 2, p. 511. Cf. id., p. 516 (“Roper dealt with hot-button social issues near the heart of the culture wars of the latetwentieth-century United States.”). Early in the dialogue, courts tended to focus on the legality of the so-called death row phenomenon (the extended period of time spent on death row awaiting execution). Later decisions considered whether use of the death penalty per se amounted to cruel or inhuman punishment. Some courts also addressed the question whether extradition to face the death penalty amounted to cruel or inhuman punishment. See Waters, supra note 5, at 507–16 (discussing case law). See id.

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of those norms in the first place. Thus, participation in dialogue enables and empowers domestic courts to fashion a new role for themselves as mediators between the domestic and international legal systems. Now enter Roper v. Simmons. Viewed as part of this broader trend among the world’s courts, Roper represented the U.S. Supreme Court’s first serious foray into the modern transnational judicial dialogue on the death penalty.11 Thus, one possible reading of Roper is that it reflected a desire on the part of Kennedy and other Justices to engage their foreign counterparts in cross-border conversation on the relevance of international human rights standards in interpreting the Eighth Amendment.12 Viewed through this lens, Kennedy’s opinion served as a sort of signaling device for the Court’s entry into judicial dialogue. By discussing at length international law and foreign practice prohibiting the execution of juvenile offenders, the Court acknowledged the robust transnational judicial dialogue on the death penalty (and on constitutional interpretation more broadly) and signaled its interest in participating in that dialogue. At the same time, by restricting international norms to a “confirmatory” role, Kennedy made clear that the Court would continue to assert the primacy of domestic norms in interpreting the U.S. Constitution. Thus, he signaled to domestic audiences the Court’s awareness of – and sensitivity to – the anxiety occasioned by the Court’s entry into transnational judicial dialogue on the death penalty. Why would domestic audiences be anxious about the Supreme Court’s participation in the modern judicial dialogue on human rights? This is where Professor Tushnet’s observation that Roper is “threatening . . . to national identity”13 becomes particularly trenchant. Perhaps the most significant feature of the transnational judicial dialogue on the death penalty has been its transformative impact on judicial identity. Domestic courts participating in this dialogue have tended to move from a narrow, “nationalist” conception of the judicial role – characterized by deference to the political branches and concern about protecting a state’s prerogatives in foreign relations – to a more expansive, “internationalist” conception. As internationalists, judges come to view their roles as mediators between domestic and international law and as protectors of individual human rights regardless of national boundaries or citizenship. They also tend to become less deferential to the political branches on matters related to human rights.14 Perhaps the anxiety surrounding Roper is grounded in part on fears that robust participation in judicial dialogue will eventually “internationalize” the Court – and undermine the political branches – in ways threatening to notions of “national identity.”15 The 11 12

13 14 15

See id. at 568–73 (discussing Roper as an example of participation in judicial dialogue on the death penalty). In a broader sense, Roper (and to a lesser extent, Lawrence v. Texas and Atkins v. Virginia) may also reflect a nascent interest in transnational judicial dialogue more generally. Certainly, public comments by some Justices indicate a growing interest in American judges’ participation in the emerging “world community” of courts. See, e.g., Melissa A. Waters, Getting Beyond the Crossfire Phenomenon: A Militant Moderate’s Take on the Role of Foreign Authority in Constitutional Interpretation, 77 Fordham L. Rev. 635, 638 n.20 (2008) (citing sources). They may also reflect a growing understanding of domestic courts’ changing role in an increasingly globalized world. See Waters, Mediating Norms, supra note 5, at 573–74. Tushnet, supra note 2, p. 517. See Waters, supra note 5, at 516–23. Other constitutional courts have experienced similar (and in some cases, more severe) political backlashes in the wake of becoming active participants in transnational judicial dialogue on the death penalty. See Laurence R. Helfer, Overlegalizing Human Rights: International Relations Theory and the Commonwealth

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suspicion, I think, is that over time an “internationalizing” Court will pay more attention to the rest of the world and less attention to the views of domestic audiences in interpreting the U.S. Constitution. In this worst case scenario, a Constitution that is the product of transnational judicial dialogue will itself become increasingly internationalist in orientation, and the Justices will “forget that it is a Constitution for the United States of America that [they] are expounding.”16 It seems extraordinarily unlikely to me that such a scenario will come to pass, and certainly Roper’s limited reliance on international sources for confirmatory support lends little credence to these fears. But it is worth acknowledging that there is indeed something new going on here. Henceforth, regardless of their consistency with historical practice, Supreme Court decisions discussing non-U.S. sources will be judged against the backdrop of the emerging transnational judicial dialogue on human rights and the concomitant emergence of domestic constitutional courts as transnational legal actors. Against this backdrop, it should be unsurprising that modern cases like Roper raise legitimacy concerns that were not provoked by (or addressed in) earlier decisions. To establish its legitimacy in this new context, advocates of the use of non-U.S. sources in constitutional interpretation would do well to acknowledge that American judges who choose to participate in dialogue will be operating to a considerable extent in uncharted waters.

II. Roper, Creeping Monism, and Interpretive Incorporation Controversy over Roper is also grounded in “something new” with respect to the Court’s use of non-U.S. sources in constitutional interpretation. I agree with Professor Tushnet’s assertion that Roper’s references to non-U.S. law were quite limited – in his words, “weak tea indeed”17 compared to the Court’s prior practice. If Roper is viewed as signaling the Court’s potential entry into modern judicial dialogue on human rights, however, the relevant question is not consistency with prior practice. Rather, the question is what Justice Kennedy’s choice of sources and interpretive methodology may tell us about how the Court is likely to shape future participation in dialogue. In particular, how does Justice Kennedy’s reliance on international human rights treaties for confirmatory support compare to the methodological choices made by other domestic constitutional courts participating in dialogue? In discerning “international opinion” on the death penalty, Justice Kennedy relied in part on international human rights treaty provisions that are not binding on the United States. This approach is consistent with a broader trend among constitutional courts throughout the common law world to use treaties that are either nonbinding or that have not been legislatively incorporated into domestic law.18 Indeed, in many countries from the former British Commonwealth, judicial participation in dialogue has begun to transform the process by which international human rights law is incorporated into domestic

16 17 18

Caribbean Backlash Against Human Rights Regimes, 102 Colum. L. Rev. 1832 (2002) (discussing backlash against the British Privy Council’s death penalty jurisprudence in the Commonwealth Caribbean). Foreign judges advocating participation in this dialogue (for example, Justice Michael Kirby of the Australian High Court) have also been roundly criticized. Thompson v. Oklahoma, 487 U.S. 815, 865 n.4 (Scalia, J., dissenting). Tushnet, supra note 2, p. 510. See generally The Role of Domestic Courts in Treaty Enforcement: A Comparative Study, chs. 3, 4, 6, 7, 11, and 12 (David Sloss, ed.) (2009) (discussing courts in Australia, Canada, India, Israel, South Africa, and United Kingdom).


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law. For judges in those countries, the common law’s historical commitment to strict dualism has presented a significant obstacle to participation in dialogue. International human rights instruments can serve as common foundations around which to construct a dialogue, but legislatures have not enacted implementing legislation to incorporate those treaties domestically. Under a strict dualist approach, the treaties are not domestically enforceable and thus are off-limits to the courts.19 Common law judges participating in dialogue have overcome the dualism obstacle by engaging in what I call creeping monism.20 Using a variety of novel interpretive incorporation techniques, these courts are eroding the dualist approach to treaties that has long characterized the common law world. Despite the absence of implementing legislation, courts are judicially incorporating human rights treaty provisions into domestic law, thus acting more and more like courts in monist-oriented legal systems.21 Their interpretive incorporation techniques run the gamut. At one end of the spectrum is a very modest use of unincorporated treaties that I call gilding the domestic lily. In this approach, the internal logic of the court’s opinion is rooted entirely in domestic sources, and thus the integrity of the opinion would stand even if the discussion of treaties were excised entirely.22 Further along the spectrum is contextual constitutional interpretation, in which a court’s consideration of international treaties is tightly interwoven with its discussion of domestic legal sources and thus integral to the court’s analysis. Treaties are not considered legally binding, but they help elucidate the meaning of domestic legal provisions.23 Finally, at the far end of the spectrum is the so-called constitutional Charming Betsy canon, in which courts interpret “ambiguities” in domestic constitutions consistently with the country’s international law obligations – obligations that are expressed in human rights treaties that have not been legislatively incorporated into domestic law.24 Justice Kennedy’s opinion in Roper is a classic example of gilding the domestic lily. He first found a domestic consensus supporting abolition of the juvenile death penalty. He then cited the International Covenant on Civil and Political Rights (ICCPR), the UN Convention on the Rights of the Child (CRC), and various regional human rights treaties prohibiting execution of juvenile offenders as evidence of an international consensus supporting abolition, adding that “[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our

19

20 21 22

23 24

Unlike other common law jurisdictions, the United States is largely monist in its approach: most treaties are automatically incorporated into domestic law without the need for implementing legislation. In ratifying major human rights instruments like the ICCPR, however, the United States routinely attaches non-selfexecuting declarations to its ratification instrument, thus ensuring that litigants do not have judicially enforceable rights under the treaties absent implementing legislation. See Melissa A. Waters, Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties, 107 Colum. L. Rev. 628 (2007). See Sloss, supra note 18. An example of gilding the domestic lily might be Justice Goldberg’s reference to the Universal Declaration of Human Rights, which Paul Stephan rightly describes as a kind of “rhetorical flourish.” See Chapter 10, p. 343. The Canadian Supreme Court has utilized the contextual approach in numerous decisions. See Waters, supra note 20, at 672–78 (discussing case law). The British Privy Council used this approach in its death penalty case law in the Commonwealth Caribbean. Justice Michael Kirby of the Australian High Court has also advocated its use. See Waters, supra note 20, at 683–86 (discussing case law).

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own conclusions.”25 Taken at face value, the confirmatory role Justice Kennedy ascribed to these treaties seemed to be a fairly innocuous kind of international window dressing for an opinion otherwise firmly grounded in domestic law.26 If Roper merely gilded the domestic lily with international human rights treaties and if this was consistent with prior Supreme Court practice, then why all the controversy? I think criticism of Roper’s interpretive approach stems from two sources. First are broader questions surrounding the legitimacy of the creeping monism phenomenon and its use of interpretive incorporation techniques. Larry Helfer has pointed out that the extent to which courts can legitimately serve as “domestic ‘transmission belts’” for incorporation of international norms will vary from jurisdiction to jurisdiction and that the risks are much higher for courts “in dualist jurisdictions that . . . limit the role of courts in enforcing international commitments.”27 If the legitimacy risks are high for courts in dualist jurisdictions who use legally binding (but domestically unincorporated) treaties in their work, an arguably greater concern arises from a court’s use of treaties to which the national political actors have not consented in the first place. The treaty provisions on which Justice Kennedy relied in Roper were not simply unincorporated treaty obligations: they were not binding on the United States at all. In relying on the ICCPR and CRC as evidence of “international opinion,” Justice Kennedy paid scant attention to the fact that the United States has not ratified the CRC and that the Senate had adopted a reservation specifying that the United States would not be legally bound to the ICCPR’s provision prohibiting the juvenile death penalty. Thus, while Roper did not treat the ICCPR and CRC as legally binding per se, it nevertheless opened the Court to criticism that it was attempting to bring in through the judicial back door international human rights norms that the political branches had specifically rejected. To critics of interpretive incorporation, for this reason, even Roper’s comparatively modest use of nonbinding treaty provisions to gild the domestic lily was suspect. Criticism of Roper may also reflect suspicion that the Court will not stop with gilding the domestic lily. Other constitutional courts have developed a range of monist-oriented techniques – some relatively modest, others quite radical – to use unincorporated human rights treaties in their work. In using human rights treaties as interpretive sources, American judges can certainly choose to implement only techniques consonant with American legal and democratic traditions. For example, while they represent the ends of a spectrum, gilding the domestic lily with international sources need not lead inexorably to holding that the Constitution must be interpreted consistently with unratified human rights treaties or customary international law. Nor is such a result likely. Yet some legal advocates and human rights organizations have urged the Court to adopt just such a radical approach.28 Thus, critics’ concerns that Roper was just the beginning of the Court’s march toward a constitutional Charming Betsy canon, while highly unlikely, do not strike me as entirely implausible. 25 26 27 28

Roper v. Simmons, 543 U.S. 551, 576–578 (2005). Of course, whether Justice Kennedy’s opinion in Roper should be taken at face value is another matter altogether and beyond the scope of this essay. Helfer, supra note 15, at 1891. Cf. Tushnet, supra note 2, p. 510, n. 18 (noting amicus arguments that “some aspects of the administration of capital punishment . . . are inconsistent with contemporary norms of customary international law”).


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III. Conclusion Professor Tushnet concludes his essay by suggesting that references to non-U.S. law in Roper challenge popular notions of American exceptionalism. In other words, Roper is “threatening . . . to national identity” because it reminds us that we are no longer “first among equals,” but rather “that we are again one among many.”29 Just as importantly, Roper is controversial because it challenges popular notions of the proper role of the U.S. Supreme Court. Viewed through the lens of the Court’s potential participation in transnational judicial dialogue on human rights, Roper suggests that the Court is simultaneously both more, and less, powerful than conventional wisdom would allow. On the one hand, Roper reminds us that in a globalizing world of courts active in dialogue, the U.S. Supreme Court is increasingly simply “one among many.”30 On the other hand, if it actively engages other constitutional courts in dialogue, the Court may emerge as a powerful transnational legal actor in its own right: a key mediator between international and domestic human rights norms with the power not just to internalize international norms into domestic law but also to shape the content of international human rights law itself. Given this potential sea change in the Court’s traditional role, it is little wonder that Roper v. Simmons occasioned so much controversy.

29 30

Id., p. 517. At one time, the Court’s constitutional jurisprudence had an outsized influence on the work of the world’s constitutional courts, ensuring the Court’s status as “first among equals.” Whether it will regain that status may well depend on the extent to which the Court is willing to become a regular participant in transnational judicial dialogue on a wide range of issues. Indeed, former Canadian Supreme Court Justice Claire L’Heureux-Dubé cited the U.S. Supreme Court’s failure to participate in judicial dialogue as a major reason for what she and other foreign judges see as the Court’s “growing isolation and diminished influence” among the world’s constitutional courts. See Claire L’Heureux-Dubé, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 Tulsa L.J. 15 (1998).

V.D

International Law and Statutory Interpretation after 2000

Main Essay Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century Ralf Michaels∗

I. Introduction The Empagran decision1 concerned a global price-fixing agreement between mostly European producers of certain vitamin products, resulting in some $7 billion in overcharge.2 Once the cartel was discovered, several types of law enforcement took place. One was public enforcement: the U.S. Department of Justice, the European Commission, and the antitrust agencies of several other countries imposed stiff administrative fines.3 Another was private domestic enforcement: a class action by U.S. purchasers ended in a billion dollar settlement; separate proceedings in other jurisdictions led to further payments, although at far lower amounts. The most interesting proceedings were the actions brought in the Empagran case. Plaintiffs had purchased vitamin products in countries other than the United States, many of which do not provide the means for proper public or private prosecution against the cartel – including Ecuador, Panama, and Ukraine.4 They nonetheless brought suit in U.S. federal court and alleged applicability of the Sherman Act under their reading of the effects doctrine as formulated in the Foreign Trade Antitrust Improvement Act:5 the price fixing had an effect on the U.S. market, even though these particular plaintiffs had not suffered their particular injuries as participants in the U.S. market. Justice Stephen Breyer held, for a unanimous court, that the plaintiffs’ claim was not covered. Empagran is often discussed as a decision representing a transnationalist approach to statutory interpretation in accordance with the demands of globalization; Justice Breyer ∗ 1

2 3 4

5

Professor of Law, Duke University. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004). I coauthored an amicus curiae brief in the case, but the remarks here are independent from the argument made there. The decision in Morrison v. National Australia Bank Ltd., 130 S.Ct. 2869 (2010), was rendered after the text was finalized. For details on the vitamins cartel, see John M. Connor, Global Price Fixing (2007). Not all agencies were similarly harsh. The Swiss agency issued a mere injunction to cease future price fixing – at the time the harshest instrument available against a first-time perpetrator. One named plaintiff came from Australia, which does have effective enforcement. He withdrew in light of the possibility to sue in Australia. See Bray v. F. Hoffman-La Roche Ltd. (2002) 118 F.C.R. 1; aff’d (2003) 130 F.C.R. 317 (Austl.). The class in Empagran was not confined to plaintiffs from countries lacking effective antitrust enforcement. 15 U.S.C. § 6a.

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himself has referred to it in this sense in lectures.6 This is, however, only one possible reading and perhaps only the most superficial one. A second reading, focusing less on the rhetoric and more on the actual application, shows the decision in Empagran to be isolationist. Despite the talk of globalization, this reading reveals the decision to represent a return to a stark territorialism. A third reading, focusing on what is left unsaid in the opinion, reveals Empagran as a hegemonialist opinion, in which the interests of the developed world are brought into congruence, while those of the developing world remain outside the analysis altogether. These three readings define the structure of this essay. These different readings are not specific to international antitrust nor to the role of the Court in the twenty-first century. This becomes clear when the rhetoric in Empagran is juxtaposed with arguments made two hundred years earlier in cases involving the extraterritorial application of British and American laws prohibiting the slave trade. Although the slave trade problem is very different from the problem of global cartels, some structural similarities may explain why we find surprisingly similar arguments. Slavery, slave trade, and piracy represented the big global challenges to the nation-state of the nineteenth century, not unlike the way in which the global economy challenges the system of states in the twenty-first century. In both situations, private actors engage in the enforcement of presumably global norms: prize seekers in the nineteenth century, private plaintiffs in the twenty-first. Sometimes the law rewards these private actors – as privateers on the oceans, as private attorney generals in international antitrust. Sometimes it despises them – as pirates or as greedy plaintiffs (or plaintiffs’ lawyers). These structural similarities do not make these cases or the situations they address similar in substance. Yet their structural similarity invites courts to make strikingly similar arguments in their attempts to balance the national with the international, and the public interests with the private. This similarity can therefore provide an important element in answering the question whether international law has changed.

II. A Transnationalist Reading: International Law as International Relations Here is how Justice Breyer justifies limiting the scope of U.S. antitrust law in Empagran: [T]his Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. This rule of construction reflects principles of customary international law – law that (we must assume) Congress ordinarily seeks to follow. This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony – a harmony particularly needed in today’s highly interdependent commercial world.7

This quote is Justice Breyer’s restatement of the Charming Betsy presumption against statutory interpretations in violation of international law. That presumption, formulated in the nineteenth century,8 is thus applied, apparently without great difficulty, to the 6 7 8

See infra pp. 235–37, nn.12, 25, 34. 542 U.S. at 164 (internal references omitted). Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804); Chapter 1, p. 37.

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twenty-first-century situation of global interdependence.9 In this so-perceived modern world, transnational law has become a hybrid that transcends boundaries – between public and private law,10 between international and comparative law,11 and even between foreign and domestic law. In Justice Breyer’s words, “We live in a world where today the law of everywhere is becoming everywhere. . . . It’s spreading around, this law . . . to the point where it becomes harder and harder to say, ‘well, that’s there and this is here.’”12 These ideas go beyond mere interdependence of different territorial states. Instead, we find a blurring of all boundaries, a transcendence of territorial states altogether, and the replacement of separate legal systems with one space of legal argument.13 Territorial boundaries no longer matter (a frequent theme in globalization debates), but that is no problem, because good judicial craftsmanship can help bring about global harmony. Yet another boundary is broken down for the sake of international harmony, that between international law and international relations. Gerald Neuman’s suggestion that “in Empagran, . . . Justice Breyer subtly gave the Government more law than it wanted, by invoking the Charming Betsy canon,”14 may have it backwards. The Charming Betsy presumption has traditionally been a legal doctrine of statutory interpretation, formulated to resolve actual conflicts with international law. “Work together in harmony,” by contrast, is a doctrine of international relations, formulated to avoid potential conflicts with foreign sovereigns. Rather than insert the Charming Betsy doctrine into foreign relations (as Neuman suggests), the Court inserts international relations into the Charming Betsy doctrine. In Empagran, the Court establishes itself as an organ of international relations, and international law is merely an element in the assessment of the best approach. Of course, the federal courts have played a role in foreign relations since the founding of the Republic, as David Sloss has demonstrated,15 and foreign relations have always been a consideration for the Charming Betsy presumption. In the early days of the Republic, the deference to foreign law in statutory interpretation was often based on a desire to avoid conflict with stronger countries.16 This could imply that the Charming Betsy presumption was historically tied to the status of the United States as a weak nation,17 and as a consequence, it could have become dispensable once the United States became the world’s only superpower.18 But the weak nation reasoning cannot explain everything. Not only has the doctrine survived the rise of the United States in decisions after World 9 10 11 12 13 14 15 16

17 18

Classic texts are Joseph Nye & Robert Keohane, Power and Interdependence: World Politics in Transition (1977); Richard N. Cooper, Economic Policy in an Interdependent World (1985). Harold Hongju Koh, Transnational Legal Process, 75 Nebr. L. Rev. 181, 184 (1994); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int’l L. Rev. 191, 192 (2003). Stephen Breyer, Keynote Address, 97 Am. Soc’y Int’l L. Proc. 265, 267 (“my description blurs the differences between what my law professors used to call comparative law and public international law”). U.S. Supreme Court Justice Stephen Breyer: A Presentation on International Law, April 10, 2009, available at http://www.youtube.com/watch?v=o5zaImTF92g. The quoted passage begins at 16:40. Michael Zurn, From Interdependence to Globalization, in Handbook of International Relations 235 ¨ (Walter Carlsnaes, Thomas Risse-Kappen, & Beth A. Simmons eds., 2002). Gerald L. Neuman, The Abiding Significance of Law in Foreign Relations, 2004 Sup. Ct. Rev. 111, 124. David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 St. Louis U. L.J. 145 (2008). See Talbot v. Seeman, 5 U.S. 1, 11 (1801); John Fiske, The Critical Period of American History, 1783–1789, pp. 127–28 (1888); Frederick C. Leiner, The Charming Betsy and the Marshall Court, 45 Am. J. Leg. Hist. 1, 18 (2001). Cf., e.g., Curtis Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479, 492 (1998). Id. at 519.

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War II.19 More importantly, Charming Betsy was not an isolated U.S. decision: around the same time, British courts announced a similar doctrine for the British Empire, then the world’s biggest power. In Le Louis, Sir William Scott (later Lord Stowell) held that the new British antislavery act abolished slavery but did not allow seizure of foreign ships involved in slave trade.20 The legal basis was a canon of interpretation similar to the Charming Betsy: “Neither this British Act of Parliament, nor any commission founded on it, can affect any right or interest of foreigners, unless they are founded upon principles and impose regulations that are consistent with the law of nations. That is the only law which Great Britain can apply to them; and the generality of any terms employed in an Act of Parliament must be narrowed in construction by a religious adherence thereto.”21 This suggests that the Charming Betsy presumption traditionally represented, at least primarily, not a pure policy assessment but an intrinsically legal doctrine. Even if its application was meant to avoid international discord, the only relevant discord was that created by violations of the law of nations.22 In Empagran, by contrast, the Court speaks not of compatibility with international law, but instead of compatibility with foreign “sovereign authority” and “legitimate sovereign interests.”23 It thereby turns the legal doctrine into a policy. Scholars have interpreted the Charming Betsy presumption as an implied deference of international relations matters to the Executive.24 The Court in Empagran apparently accepts the view of international law as international relations, but draws a different conclusion: if international law is international governance, then the courts themselves, first and foremost the U.S. Supreme Court, must adopt the role of global governor.25 In a world in which diplomatic protests addressed to the Executive are being replaced by amicus briefs addressed to the Court – in the Empagran case, seven foreign governments submitted such briefs –26 adopting this role seems a logical step. This rise of international relations as the basis of the Charming Betsy presumption coincides with the decline of international law. Dutifully, Justice Breyer cites § 403 of the Restatement on Foreign Relations, but a real analysis of whether the assertion of jurisdiction would violate § 403, or international law more generally, is absent. More strikingly, there is also no detailed analysis of “potentially conflicting laws.”27 If Justice 19 20

21

22 23 24 25

26

27

See Chapter 12, pp. 382, 385–86, 390, 393–401. Le Louis (1817) 165 E.R. 1464, 1474 (2 Dodson’s Admiralty Repts. 210, 239). For historical context, see Tara Helfman, Note: The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade, 115 Yale L.J. 1122 (2006). Le Louis, 165 E.R. at 1474 (2 Dodson’s Admiralty Repts. at 239); see also Leroux v. Brown, 138 Eng. Rep. 1119 (C.P. 1852) (Maule, J.) (“If the meaning of the Act is doubtful, it is a reason for not putting a particular interpretation upon it, that that interpretation would violate the comity of nations.”) See Chapter 12, pp. 393–401. Compare Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455 (2007). Bradley, supra note 17. Stephen Breyer, International Governance and American Law, speech at the Brookings Institution, 24 June, 2008, available at http://www.brookings.edu/events/2008/0624 international law.aspx. Cf. Ralf Michaels, US-Gerichte als Weltgerichte: Die Avantgarde der Globalisierung, 31 DAJV-Newsletter 46–54 (2006); Hannah L. Buxbaum, National Jurisdiction and Global Business Networks, 17 Ind. J. Global Leg. Stud. 165, 170–72 (2010); Christopher Whytock, Domestic Courts and Global Governance, 84 Tul. L. Rev 67, 74–96 (2010). Briefs were submitted by the Governments of the Federal Republic of Germany and Belgium (jointly); Canada; Japan; Great Britain, Ireland, and the Netherlands (jointly); and the United States. All favored dismissal. Empagran, 542 U.S. at 164.

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Breyer’s thoughts on the globalization of law were apt, one might expect the potential for such conflicts to be low. Elsewhere, he has claimed that “[t]he commercial law of the various states, for example, has become close to a single, unified body of law.”28 Indeed, price fixing is banned in nearly every legal system in the world (a point emphasized in Empagran, ironically, by the defendants). Plaintiffs’ lawyers had even claimed that the ban on price fixing amounted to a principle of customary international law, a suggestion the lower court rejected.29 Moreover, the effects doctrine for establishing jurisdiction in antitrust matters, whose contours were still in dispute worldwide when the U.S. Supreme Court previously addressed the application of the Sherman Act against British reinsurers in Hartford Fire,30 has since become universally accepted, albeit with variants. However, Justice Breyer does not consider such agreement on ends to be sufficient to assume similarity: “[E]ven where nations agree about primary conduct, say, price fixing, they disagree dramatically about appropriate remedies.”31 Interestingly, Sir William Scott argued similarly about the slave trade in Le Louis: “Nor is it to be argued, that because other nations approve the ultimate purpose, they must therefore submit to every measure which any one state or its subjects may inconsiderately adopt for its attainment.”32 In Empagran, this speculation might have suggested an actual comparative law analysis. For example, the Court might have considered distinguishing between plaintiffs from states that have a functioning antitrust regulation scheme (and had said so in their amicus curiae briefs) and those from states without such a scheme. Indeed, in other contexts, Justice Breyer has famously suggested how fruitful it is to look at other nations’ laws, even where this examination is not mandated.33 When he speaks about the Empagran opinion in presentations, he likes to point out that the Court, in order to decide, “had to know something about the antitrust law of the European Union.”34 The Empagran decision itself displays little such analysis. The Court considered a detailed comparative law analysis “too complex to prove workable”: Courts would have to examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint venture, in respect to both primary conduct and remedy. The legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceedings – to the point where procedural costs and delays could themselves threaten interference with a foreign nation’s ability to maintain the integrity of its own antitrust enforcement system.35 28 29

30 31 32 33 34 35

Breyer, supra note 11, at 267. Cf. Chris Noonan, The Emerging Principles of International Competition Law (2007). Empagran S.A. v. F. Hoffman-La Roche, Ltd., 2001 WL 761360, at 8–9 (citing In re Microsoft Corp. Antitrust Litigation, 127 F.Supp.2d 702, 717 (D. Md. 2001), and Kruman v. Christie’s Int’l PLC, 129 F.Supp.2d 620, 627 (S.D.N.Y. 2001)). See also Ioannis Lianos, The Contribution of the United Nations to the Emergence of Global Antitrust Law, 15 Tul. J. Int’l & Comp. L. 415 (2007) (arguing that the UNCTAD Set of Principles and Rules on Competition might evolve into customary international law). Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993). Empagran, 542 U.S. at 167. Le Louis, 165 E.R. at 1480 (257). See, e.g., The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia and Justice Stephen Breyer, 3 I·CON 519 (2005). Stephen Breyer, After-Dinner Remarks, 41 Int’l Law. 1007, 1009 (2007); Breyer, supra note 25, at 14. Empagran, 542 U.S. at 168–69. For a similar argument, see Spector v. Norwegian Cruise Line, 545 U.S. 119, 154 n.4 (2005) (Scalia, J., dissenting).

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The image remains of a Court that is not only aware of its role in an interdependent world but is also willing and equipped with the tools necessary to fulfill that role, even if it ultimately prefers caution over action. The tools are mainly those of international relations, not international law. Deference to international law gives way to deference to foreign sovereigns; detailed analysis of the exact requirements of international law gives way to an analysis of the likelihood of international conflict. Forty years earlier, the Sabbatino Court was criticized for adopting its own “strong sense . . . that its engagement [in foreign relations] may hinder, rather than further, this country’s pursuit of goals both for itself and for the community of nations as a whole in the international sphere.”36 No similar reaction to Empagran has occurred.

III. An Isolationist Reading: Extraterritoriality in a Post-Territorial World What are the consequences of this transnationalist, post-territorial, “work together in harmomy” jurisprudence for Empagran? The answer is, to put it mildly, surprising: No one denies that America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs. . . . But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff’s claim?37

This is quite a striking move. Justice Breyer starts with the recognition that both regulated events and regulatory instruments transcend territorial boundaries: we are interdependent because actions in and by one state have impacts on other states. He ends with the conclusion that we must confine application of our laws to strictly territorial boundaries. Because the world has become deterritorialized, we must apply our laws in a strictly territorial fashion. Because the world has become interdependent, we must allow for independent regulation by different regulators. To “work together in harmony,” each nation must act in isolation for itself: the U.S. regulates the U.S. market, Japan regulates the Japanese market, and so on. And the real trigger lies not in the valid sovereignty interests of foreign nations, but in the lack of sovereign interests of the United States. Suddenly, we have moved away from the twenty-first-century world of interdependence and cooperation into the nineteenth-century U.S. role of isolationism and the desire to keep exclusive territorial competences strictly separate. It follows as a matter of course that, in such a world, extraterritorial application of U.S. law is unavailable. All that we can hope for is persuasion: Where foreign anticompetitive conduct plays a significant role and where foreign injury is independent of domestic effects, Congress might have hoped that America’s antitrust laws, so fundamental a component of our own economic system, would commend themselves to other nations as well. But, if America’s antitrust policies could not win their own way in the international marketplace for such ideas, Congress, we must assume, would not have tried to impose them, in an act of legal imperialism, through legislative fiat.38 36 37 38

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964). I thank William S. Dodge for pointing out the relevance of Sabbatino in this context. Empagran, 542 U.S. at 165 (emphasis in original). Empagran, 542 U.S. at 169.

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Chief Justice John Marshall expressed a similar idea in The Antelope when he suggested that “[t]he parties to the modern law of nations do not propagate their principles by force.”39 Still, it is not clear what exactly Justice Breyer has in mind. America’s antitrust policies have, in fact, won much of their own way in the international marketplace for ideas40 – including both the idea of private enforcement, which is being actively discussed in the European Union, and leniency for whistleblowers. If anything, the difference is not in the substantive antitrust laws but in the procedure for their enforcement, but procedure has traditionally been a matter for lex fori. How did we get from a “highly interdependent commercial world” to “independent foreign harm” and “a foreign nation’s ability independently to regulate its own commercial affairs”? By way of an assumption so crucial that Justice Breyer mentions it numerous times. Here is the most elaborate formulation of the fiction: “We reemphasize that we base our decision upon the following: the price-fixing conduct significantly and adversely affects both customers outside the United States and customers within the United States, but the adverse foreign effect is independent of any adverse domestic effect.”41 This assumption is a fiction. In a “highly interdependent commercial world,” effects on one nation’s markets are never independent from effects on another nation’s markets.42 The vitamins cartel, in order to avoid arbitrage, had to keep prices roughly the same in all geographically close markets. Justice Breyer knows this, but he faces a challenge: the globalization he invokes comes back to haunt him. The doctrines that the Court has at its disposal were made for a nineteenth-century world defined by territorial states. These doctrines do not fit globalization and the transcendence of territorial borders. Perhaps new doctrines are needed; perhaps the old doctrine must be deterritorialized.43 The Court, however, finds another way. Instead of deterritorializing existing rules, it reterritorializes the phenomena to which these rules are applied. Rather than adapt the doctrines to globalization, it adapts globalization to the doctrines. If the nineteenthcentury rules do not fit the twenty-first-century world, too bad for the latter – the Court turns it, by fiction, into a nineteenth-century world. This result, of course, does not require all the globalization talk, as Justice Antonin Scalia’s concurrence makes clear: I concur in the judgment of the Court because the language of the statute is readily susceptible of the interpretation the Court provides and because only that interpretation is consistent with the principle that statutes should be read in accord with the customary deference to the application of foreign countries’ laws within their own territories.44

This concurrence links the decision to another venerated canon of international law, the presumption against extraterritorial application of statutes, as formulated by Justice Joseph Story in The Apollon.45 That presumption, however, has become problematic, 39 40 41 42

43 44 45

The Antelope, 23 U.S. 66, 121 (1825); see Chapter 1, p. 36. See Joel Davidow, The Worldwide Influence of U.S. Antitrust, 35 Antitrust Bull. 603 (1990). Empagran, 542 U.S. at 164. This is not a new insight. See United States v. Aluminum Co. of America, 148 F.2d 416, 443 (2d Cir. 1945) (“Almost any limitation of the supply of goods in Europe, for example, or in South America, may have repercussions in the United States if there is trade between the two.”); see also Chapter 8, pp. 265–66. Ralf Michaels, Territorial Jurisdiction After Territoriality, in Globalisation and Jurisdiction 105 (Pieter J. Slot & Mielle Bulterman eds., 2004). Empagran, 542 U.S. at 176 (Scalia, J., concurring). The Apollon, 22 U.S. 362, 370 (1824). See Chapter 1, p. 38.

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because territoriality has changed both its social and legal meaning. In 1825, jurisdiction was thought to be largely confined to national territory. Consequently, the presumption against extraterritoriality was almost equivalent to a presumption against violations of international law. Professor Roger Alford in Chapter 8 neatly explains how this idea withered away in U.S. law in the twentieth century.46 Today, international law no longer poses such extensive restrictions on domestic jurisdiction over foreign conduct. The presumption against extraterritoriality has survived this shift, but it has lost its grounding in international law.47 Moreover, this decline of territoriality as a limit in international law has gone hand in hand with the declining importance of territoriality in society. Modern transportation has made crossing boundaries much easier; new modes of communication make territorial boundaries meaningless for many important endeavors; globalized markets pay little respect to national boundaries. The conduct of important actors, which is the object of most statutory regulation, is trans-territorial. A canon of interpretation that insists on territoriality stands in odd contrast to these developments. Before the shift, Congress was presumed not to legislate beyond territorial boundaries because that would be unusual and would violate international law. Now that the canon has lost its legal foundation in international law and its teleological foundation in a presumed predominantly local character of regulated behavior, it is unclear what justifies it. One suggestion is that courts should avoid extraterritorial application to avoid subjecting the United States to foreign criticism without participation by the political branches,48 but this does not explain why limits of scope should be those of territorial boundaries. Another justification is “the commonsense notion that Congress generally legislates with domestic concerns in mind.”49 This justification is weak where, as in Empagran, the statute at hand is one aimed at determining the scope of extraterritorial application (although the justification has been used in such contexts, too).50 More importantly, the justification begs the very question of what exactly are “domestic concerns.”51 In choice of law, such insights have led in the twentieth century to the development of interest analysis, whereby courts determine the scope of application on the basis of governmental interest and then resolve resulting conflicts with the regulatory interests of other states. If the presumption against extraterritoriality was once a presumption against the violation of choice of law rules, as has been argued,52 one might expect it to change along with choice of law rules, as many authors have suggested it should.53 Empagran suggests the 46 47

48 49

50 51

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Chapter 8, pp. 259–69. William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 114 (1998). See also Morrison, 130 S.Ct. at 2777-78 (“The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law”). See, e.g., Curtis Bradley, Territorial Intellectual Property Rights in an Age of Globalism, 37 Va. J. Int’l L. 505 (1997). EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo, 338 U.S. 281, 285 (1949)); Smith v. United States, 507 U.S. 197, 204 n.5 (1993) (cited approvingly by Justice Breyer in Small v. United States, 544 U.S. 386, 388–89 (2005) and by Justice Scalia in Morrison, 130 S.Ct. at 2777). Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455–56 (2007). Dodge, supra note 47, at 119 (suggesting that “domestic concerns” are “effects within the United States”); John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int’l L. 351, 373, 383-85 (2010) (arguing for a balance between domestic effects and the avoidance of international discord). Note: Preserving the Inviolability of Rules of Conflict of Laws by Statutory Construction, 49 Harv. L. Rev. 319 (1938). See, e.g., William S. Dodge, The Public-Private Distinction in the Conflict of Laws, 18 Duke J. Int’l. Comp. L. 371 (2008) (with further references at 372 n.8).

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powerful grip that ideas of territoriality still hold even over a Justice who claims to be above them. Territorial limits to jurisdiction present normative problems when applied to phenomena that do not respect territorial boundaries. If the effects of certain conduct transcend boundaries, while congressional statutes are presumed to remain within territorial boundaries, then the effects outside the borders remain unregulated. This has led some to conclude that the presumption against extraterritoriality, revived under the Rehnquist Court,54 is merely a fig leaf for judicial dislike of congressional regulation.55 Justice Oliver Wendell Holmes, Jr.’s decision in American Banana has been explained by his aversion to the Sherman Act.56 Justice Breyer, after deciding Empagran, has been praised as “the go-to guy for American business in regulatory and economic cases.”57 Such crude realist speculations on the Justices’ real intentions must remain somewhat speculative even for individual decisions; for the law at large, they have limited explanatory value. In Empagran especially, the suggestion that the real goal is underregulation may not fully hold. The Court emphasizes that other countries have antitrust laws, too. Presumably, therefore, regulation of the cartel would not stop at U.S. borders. Instead, other nations would regulate, even if they did so by different means. This suggests that today the presumption against extraterritoriality is not merely a policy decision in favor of multinational corporations. The Court refuses to concentrate all claims concerning the global cartel in one nation’s courts,58 but it does not reject the idea that all these claims should be heard somewhere. Instead, the presumption against extraterritoriality establishes a checkerboard map of regulatory authorities, in which each country is responsible for regulating its own territory. This checkerboard map resembles that of the nineteenth century, but the resemblance is superficial. Then, it represented the reality of most social relations and of international law. Today, territorial borders are an arbitrary and formalist device in a globalized world, but one that helps avoid overlapping regulatory claims precisely because of its formal character.59 The nineteenth-century checkerboard view of the world survives in the twenty-first century, but it changes its character: it has become a formal-technical device for the allocation of regulatory authority.

IV. A Hegemonialist Reading: The Absence of the Developing World A problem remains. The idea of decentralized regulation – each regulates its own markets, so all the world is regulated – can succeed only if regulatory authority exists everywhere on the checkerboard. This is a problem in antitrust law. Although the United States is no longer the only country with effective antitrust enforcement, many countries still lack the capacity or political will (or both) to crack down on cartels. None of these 54 55 56 57 58

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Chapter 12, pp. 388–89. See Larry Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179, 202. But cf. Alfred S. Neely, A Humbug Based on Economic Ignorance and Incompetence – Antitrust in the Eyes of Justice Holmes, 1993 Utah L. Rev. 1, 37–39. Michael J. Greve, The Justices at Home and Abroad, 21 Federalist Outlook 6 (2004), available at http://federalismproject.org/depository/FederalistOutlook21.pdf. Cf. Hannah Buxbaum & Ralf Michaels, Jurisdiction and Choice of Law in International Antitrust Law – A US Perspective, in International Antitrust Litigation – Conflict of Laws and Coordination (Jurgen Basedow, Stéphanie Francq, & Laurence Idot eds., forthcoming). ¨ Cf. Dodge, supra note 47, at 115–16; William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101, 123 (1998).

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considerations, however, can be found in the Empagran decision. The most striking passage in the opinion is one in which Justice Breyer suggests such a checkerboard world of regulation: “Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct . . . ?”60 This is a strange way of putting the problem. In Empagran, the named plaintiffs were not “Canadian, or British or Japanese customers”– they came from Ukraine, Ecuador, and Panama. Yet throughout the opinion, Justice Breyer never addresses the sovereign interests of those countries. When he states that application of U.S. law “would undermine foreign nations’ own antitrust enforcement policies,”61 he is not speaking of Ecuador (which may be quite happy if the United States cracks down on cartels affecting that country).62 Instead, he speaks of Germany and Canada. When he fears that “to apply our remedies would unjustifiably permit [foreign nations’] citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody,”63 the balance of competing considerations he has in mind is that of Germany, Canada, and Japan, not that of Ukraine. In the end, Justice Breyer is not allowing Canada, Great Britain, or Japan to determine how best to protect their consumers as he proclaims. Instead, he is protecting Canadian, British, and Japanese corporations against their overcharged customers abroad.64 All named plaintiffs come from developing countries; all defendants and all amicus briefs come from developed countries. The court will apparently listen to the latter and ignore the former. In doing so, the Court adopts not only the nineteenth-century idea of neatly distinguished territorial entities; it also adopts the old idea of an international law limited to European and North American countries.65 Developed countries regulate their markets, and the rest of the world remains unregulated – with the consequence that European and American defendants can retrieve the money they lose to American and European plaintiffs and regulators. Justice Breyer’s harmony among countries creates quite an exclusive club. In the name of avoiding U.S. hegemony over other developed countries, the Supreme Court endorses hegemony of developed over undeveloped countries. It avoids the imperialism of imposing U.S. law on others, but it endorses the imperialism of restricting access to U.S. law. The exclusive focus on the sovereign interests of Western countries is best demonstrated, ironically, by the near absence of non-Western countries in Western discourse, especially in the United States. But it has a long and well-known history in international law. An uneasy relation to developing countries characterized the Court’s first major opinion on international antitrust, American Banana.66 There, Justice Holmes suggested that the presumption against extraterritoriality might not apply to “regions subject . . . to 60 61 62 63 64 65 66

Empagran, 542 U.S. at 165. Id. at 168. See the discussion in Michal Gal, Antitrust in a Globalized Economy: The Unique Enforcement Challenges Faced by Small and Developing Jurisdictions, 33 Fordham Int’l L.J. 1, 40–45 (2009). Empagran, 542 U.S. at 167. See, e.g., Brief of the Governments of the Federal Republic of Germany and Belgium as Amici Curiae at 2; Brief of the Government of Japan as Amicus Curiae, p. 1. Cf. Chapter 2, pp. 59–61. American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909); see Chapter 8, pp. 260–63.

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no law that civilized countries would recognize as adequate,”67 but he did not ultimately apply this exception to Costa Rica, which during that time period has aptly been characterized as a “Banana Republic.”68 One explanation can perhaps be found in a citation to a passage in Dicey’s work on conflict of laws dealing with “law governing acts done in uncivilized countries.”69 Dicey realized that deference to uncivilized countries could hardly be justified by principles of civility. Nonetheless, he suggested applying the rules governing relations with civilized countries by analogy, as far as possible.70 In other words, the inclusion of non-Western nations in the family of nations does not alter the concept of a state in international law. Instead, that concept, crafted after Western models, is imposed on non-Western countries by analogy. We can see even more striking similarities in the treatment of Africa in the slave trade cases. In Le Louis, Sir William Scott was aware that deference to the interests of France operates to the detriment of Africa – “peace in Europe will be war in Africa.”71 In the end, however, relations with France were more important than those with Africa. Scott asked, “Why is the British judge to intrude himself in subsidium juris, when everything requisite will be performed in the French Court in a legal and effectual manner?”72 The ensuing move from natural law to positivism foreshadowed the U.S. Supreme Court’s similar move, beginning with Marshall’s opinion in The Antelope.73 Less often discussed is how the move leads to a reduction in international law’s reach: if only the interests and positions of states count, then states that are unable to have their positions heard will be ignored. Justice Breyer does not play out the developing against the developed world in the same way. Rather, he seems to imply that all countries share the same sovereign interest in self-determination, which must be respected, even if most developing countries lack the means to crack down on big international cartels. This equation among sovereigns is reminiscent of Chief Justice Marshall’s argument why a universally shared law of nations against slavery does not exist: “The parties to the modern law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves.”74 Of course, this curious “gesture towards including Africa within the law of nations”75 was of little use to Africa or at least to its inhabitants subject to the slave trade. Moreover, Marshall confined the judge’s standard of international law to “the general assent of that portion of the world of which he considers himself as a part”76 – in other words, the Western world, which has long supported the slave trade. In such a world, which treats slavery as either a sovereign choice by sovereign African states or as a given fact of African customs that Western nations are free to 67 68 69 70 71 72 73 74 75 76

213 U.S. at 355. Chapter 8, pp. 262–63. Albert Venn Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 724 (2d ed. 1908). Id. at 726. Le Louis (1817), 165 E.R. at 1479 (254). Id. at 1479 (256). See Chapter 1, p. 36 (discussing The Antelope). The Antelope, 23 U.S. 66, 121 (1825). For virulent criticism, see Guyora Binder, The Slavery of Emancipation, 17 Cardozo L. Rev. 2063 (1996). Antony Anghie, Imperialism, Sovereignty and the Making of International Law 54 (2005). The Antelope, 23 U.S. at 121.

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accept or reject, a genuine African interest in the abolition of slavery is absent from any analysis. This suggests that the role of sovereignty for developing countries may be more complex than is often argued. Traditionally, the extraterritorial application of developed countries’ laws has been criticized for stripping developing countries of their own regulatory independence,77 with U.S. courts “as agents of U.S. hegemony.”78 The underlying assumption is that developing countries’ sovereignty is merely formal: they lack the economic and political power to be truly independent. Even if this assumption is correct, the conclusion does not necessarily follow. Cases from The Antelope through Empagran suggest that the refusal to apply law extraterritorially – especially regarding conduct that is almost universally condemned (slavery, price fixing) – can also be a problem, because it leaves Third World countries unprotected against the power of transnational commercial actors. If developing countries lack the domestic means to regulate those actors themselves, they may depend on developed countries’ willingness to regulate their own actors. The Court’s real choice in Empagran is not between imperialism and international harmony. Rather, the choice is between two kinds of imperialism: one that comes from imposing U.S. law on the rest of the world, and the other from rejecting access to the courts necessary for protection against Western corporate actors. The Court avoids one kind of imperialism, but Justice Breyer’s pride seems unwarranted, because the Court falls, perhaps unavoidably, for another kind. The omnipresence of some kind of imperialism suggests that a proper analysis of the decision might be framed in terms of empire – not in the sense of the United States as an empire, but in the sense of a transnational super-state that transcends individual states and imposes a collective logic on all of them.79 Susan Marks has translated this dystopia into international law;80 her text suggests eerie parallels with Empagran. When she speaks of “a new, global form of sovereignty composed of agencies which operate in diverse arenas (national, regional, and global), yet interlock to form a single framework of governance for the entire world,” a “regime that knows no territorial boundaries” that is “dedicated to the inauguration of perpetual peace (even if . . . it remains enmeshed with the deployment and rationalization of violence),”81 she paints a picture that looks very much like Justice Breyer’s. However, instead of praising international harmony, she highlights the totalitarian and violent character of such a regime: “[T]oday hierarchies are constituted and sustained by more complex patterns and logics, which are obscured, and hence reinforced, where globalization is elided with neo-imperialism.”82 When she goes on to find that “with deterritorialization comes reterritorialization,”83 she could have the isolationist reading of Empagran in mind. When she finally cites Hardt and Negri for the idea that “the geographical and racial lines of oppression and 77 78 79 80 81 82 83

E.g., B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Int’l Comm. L. Rev. 1, 12 (2006). Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 Ind. J. Global Leg. Stud. 383, 416 (2003). Michael Hardt & Antonio Negri, Empire (2000). Susan Marks, Empire’s Law, 10 Ind. J. Global Leg. Stud. 449 (2003). See also Mark Goodale, Empires of Law: Discipline and Resistance within the Transnational System, 14 Soc. & Leg. Stud. 553 (2005). Marks, supra note 80, at 461. Id. at 463. Id. at 464.

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exploitation that were established during the era of colonialism and imperialism have in many respects not declined but instead increased exponentially,”84 the link to slavery is made.

V. Conclusion We should not exaggerate. Marks’ neo-Marxist analysis is perhaps no less hyperbolical than Justice Breyer’s neoliberal celebration of nations working in harmony. The important insight is that both analyses are available simultaneously. In the end, Empagran is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with few references to international law displays deep links to some of the most pressing international law issues. A decision with forward-looking globalization rhetoric is mired in history. A decision praising harmony displays somber parallels to decisions refusing interference with the evil of the slave trade. This has implications for our understanding of international law today and of its history. So, does international law in the Supreme Court manifest qualities of continuity or change? The easy answer, of course, is that it displays both change and continuity. The use of the Charming Betsy canon suggests continuity; its transformation from a legal doctrine to an instrument of foreign politics suggests change. The recognition of globalization and an interdependent world suggests change; the effective return to strict territoriality represents continuity, or even regress. The presumption against extraterritoriality is a remnant from times past; its function as a formal-technical device to allocate regulatory power has changed. But the real answer is more complex. The question of continuity or change presumes a linear development that is hard to discern in Empagran. The three different readings of the opinion – transnationalist, isolationist, and hegemonialist – have a particular relevance for historical analysis. If all readings of the decision are possible, perhaps the opinion is rooted in various times. This means, in turn, that Empagran does not represent the endpoint of some linear development or some sequence of different periods that neatly follow one another. Rather, these different logics can all coexist within one opinion, and sometimes within one paragraph or even one sentence. If Empagran is emblematic of the new period of globalization, then it demonstrates that globalization is not a time period separate from others. Rather, it is characterized by what Ernst Bloch has called Gleichzeitigkeit des Ungleichzeitigen, the simultaneity of the nonsimultaneous.85 Marks’ description of empire as a regime that has overcome not only territorial but also temporal boundaries reflects this aspect. Empire has long been a topic of American history. Washington’s concept of the United States as an “infant empire” and Jefferson’s dream of an “empire of liberty” attest to a celebration of empire from the nation’s founding.86 Discussion of whether today’s United States is an empire has reappeared, with some celebrating and some criticizing the perceived role of the United States as 84 85 86

Id. (citing Hardt & Negri, supra note 79, at 43). Ernst Bloch, The Heritage of our Time (1991); cf. David C. Durst, Ernst Bloch’s Theory of Nonsimultaneity, 77 Germanic Rev. 171 (2002). Niall Ferguson, Colossus – The Rise and Fall of the American Empire 2, 34 and passim (2004).

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a modern empire that does not require territorial acquisitions to rule the world.87 The history of international law in the U.S. Supreme Court is also the history of empire, and the current Court cannot escape that history. In the end, the absence of such analyses – both in Empagran and in its scholarly reception – is itself relevant. Scholars view the decision as a move toward comity and transnationalism, like they view the slave trade cases as the move from a natural law conception of international law to a positivist understanding, and this technical character of international law discourse makes it possible to draw connections between the cases. The field, with its core elements such as sovereign interests and territoriality, has a formal-conceptual quality that makes it applicable over different time periods and vastly different issues. That propensity for abstraction, in the face of fundamental changes in world history, can sometimes represent a shocking absence of concern for real-life problems. Sometimes, by contrast, this propensity is how international law remains able, in the face of such changes, to serve as “gentle civilizer,” as Martti Koskenniemi has pointed out.88 Empagran, with its reaches back into history, both visible and invisible, represents both. 87 88

The best comparative analysis is Charles S. Maier, Among Empires: American Ascendancy and Its Predecessors (2007). Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2002).

Response Essay Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century William S. Dodge∗

In the early years of the United States, the relationship between international law and statutory interpretation was relatively straightforward. The Supreme Court simply applied the Charming Betsy canon “that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”1 The presumption against extraterritoriality grew from the marriage of this canon to an international law rule that jurisdiction was territorial.2 During the twentieth century, the presumption against extraterritoriality separated from the Charming Betsy canon and came to rest on different justifications – first on comity3 and then on “the assumption that Congress is primarily concerned with domestic conditions.”4 But these canons remained relatively stable. Near the century’s end, Justice Antonin Scalia would list just two principles of interpretation relevant to determining the extraterritorial reach of a statute: the presumption against extraterritoriality and the Charming Betsy canon.5 The first decade of the twenty-first century, by contrast, has been one of ferment. In Empagran, Justice Stephen Breyer announced a new rule: construing statutes “to avoid unreasonable interference with the sovereign authority of other nations.”6 Although he cited the Charming Betsy in support of this rule, avoiding interference with the sovereign authority of other nations is something quite different from avoiding violations of international law.7 A year later, Justice Breyer (again speaking for the Court) announced yet another new canon in Small v. United States. To decide if the federal felon-inpossession-of-a-firearm statute applied to persons convicted in foreign courts, he invoked the “commonsense notion that Congress generally legislates with domestic conditions in mind.”8 This had been one of the bases for the presumption against extraterritoriality

∗ 1 2 3 4 5 6 7 8

Professor of Law, University of California, Hastings College of the Law. Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). See Chapter 1, pp. 38–39. See American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814 (1993) (Scalia, J., dissenting). F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004). See Ralf Michaels, Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century, supra pp. 235–36. Small v. United States, 544 U.S. 385, 388 (2005) (quotation omitted).

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since the mid-twentieth century,9 but (as Breyer conceded) that presumption did not apply in Small because the defendant was charged with possessing a firearm in the United States.10 So Breyer promoted this notion from rationale to rule, leading Justice Clarence Thomas in dissent to accuse the Court of “invent[ing] a canon of statutory interpretation.”11 Even when the Court was not inventing new canons, it was subtly changing old ones. In Morrison v. National Australia Bank Ltd., Justice Scalia applied the presumption against extraterritoriality to determine the applicability of federal securities law to a case involving deception in the United States causing losses abroad. He held that the antifraud provisions of the Securities Exchange Act apply only to sales or purchases in the United States, shifting the presumption’s focus from the location of the conduct prohibited to the location of the transaction affected.12 Canons of interpretation are tools, and tools are designed to solve problems. The problem faced by the Supreme Court at the start of the twenty-first century is the one articulated in Empagran: to “help[] the potentially conflicting laws of different nations work together in harmony – a harmony particularly needed in today’s highly interdependent commercial world.”13 The Court’s recent creativity with canons betrays confusion about how best to address that problem. As Professor Ralf Michaels’s penetrating analysis of Empagran shows, conflicting logics may exist within a single Justice and even within a single opinion.14 This essay widens the focus to other cases and other members of the Court and argues that two general approaches have emerged. The first approach, most strongly associated with Justices Breyer and Ruth Bader Ginsburg, divides the world into regulatory spheres based on legitimate sovereign interests. Sovereign interests are not as clear as territorial borders and tend to overlap. But Breyer and Ginsburg often resist the idea of overlap, leading to some odd results. The second approach, most strongly associated with Justices Scalia and Thomas, uses the presumption against extraterritoriality to divide the world into discrete territorial units. But it is not always clear how this presumption should be applied when conduct occurs in one place and has effects in another, and Scalia and Thomas do not always apply it consistently. The gist of the Breyer–Ginsburg approach is articulated in Empagran’s new canon – “to avoid unreasonable interference with the sovereign authority of other nations,”15 or as the opinion puts it a bit later, to “take account of the legitimate sovereign interests of other nations.”16 The flip-side of this proposition is the canon articulated in Small – “that Congress generally legislates with domestic concerns in mind.”17 Under the Breyer– Ginsburg approach, the legitimate interests of the United States and other nations tend 9 10 11 12

13 14 15 16

17

See supra p. 547. Small, 544 U.S. at 389. Id. at 399 (Thomas, J., dissenting). 130 S. Ct. 2869, 2884 (2010) (“we think that the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States”). I have argued previously that the presumption against extraterritoriality should focus on the location of effects rather than the location of conduct. See William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85 (1998). F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164–65 (2004). See Michaels, supra note 7. 542 U.S. at 164. Id. Justice Ginsburg quoted the latter phrase in her opinion for the Court in Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455 (2007), and her dissent in Pasquantino v. United States, 544 U.S. 349, 379 (2005), joined in each case by Breyer. 544 U.S. at 388 (quotation omitted); see also Pasquantino, 544 U.S. at 378 (Ginsburg, J., dissenting).

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to be defined by effects rather than by where the conduct causing those effects occurs. In Empagran, for example, Breyer observed that, although applying American antitrust laws extraterritorially to regulate foreign conduct “can interfere with a foreign nation’s ability independently to regulate its own commercial affairs,” such application is “nonetheless reasonable . . . to redress domestic antitrust injury that foreign anticompetitive conduct has caused.”18 In Spector v. Norwegian Cruise Line Ltd., Justice Anthony Kennedy similarly defined the limits of the “internal affairs” rule – that U.S. law does not apply to matters affecting only the internal affairs of foreign-flag ships – with reference to effects.19 And in Pasquantino v. United States, Justice Ginsburg dissented from applying the U.S. wirefraud statute to defendants smuggling liquor into Canada on the ground that the scheme, despite its location in the United States, was “the primary concern of a foreign country.”20 Sometimes, as in Pasquantino, the effects of an activity are felt in only one place (only Canada lost tax revenue). But often, as in Empagran, the same conduct causes effects in a number of locations. Under those circumstances, a focus on legitimate sovereign interests leads naturally to concurrent jurisdiction. Breyer and Ginsburg, however, seem to want brighter lines of regulatory authority than their approach would naturally allow, which led (as Professor Michaels describes) to Empagran’s unrealistic and oft-repeated assumption that the effects of the vitamins cartel in foreign markets were completely independent from the effects of the same cartel in the United States.21 The desire for separate regulatory spheres sometimes leads Breyer and Ginsburg to resist the integration of different legal systems. In Small, the question was whether the federal felon-in-possession statute applied to a person convicted in Japanese court. Justice Breyer concluded it did not because “Congress generally legislates with domestic conditions in mind.”22 But he also expressed a remarkable lack of faith in foreign legal proceedings, which, he suggested, “somewhat less reliably identif[y] dangerous individuals for the purpose of U.S. law.”23 Regulatory separation is also the theme of Justice Ginsburg’s dissent in Pasquantino, which would have denied the U.S. executive branch authority to help Canada enforce its tax laws by prosecuting U.S. smugglers for wire fraud.24 In a part of her dissent joined only by Justice Breyer, she applied the presumption against extraterritoriality as reformulated in Small and concluded that the wire fraud statute should not reach conduct with which only Canada was legitimately concerned.25 18

19

20 21 22 23 24 25

542 U.S. at 165 (citing United States v. Aluminum Co. of America, 148 F.2d 416, 443–44 (2d Cir. 1945)). Despite some potentially misleading citations of Justice Scalia’s Hartford dissent and § 403 of the Restatement (Third) of Foreign Relations Law, Empagran endorses the Hartford majority’s effects approach and expressly rejects case-by-case balancing as “too complex to prove workable.” 542 U.S. at 168. Justice Scalia has also retreated from his brief dalliance with balancing in Hartford. See Spector v. Norwegian Cruise Ship Line Ltd., 545 U.S. 119, 158 (2005) (Scalia, J., dissenting) (“The fine tuning of legislation . . . through the process of case-by-case adjudication is a recipe for endless litigation and confusion.”). 545 U.S. at 132 (plurality opinion) (noting that it is reasonable “to presume Congress does intend its statutes to apply to entities in United States territory that serve, employ, or otherwise affect American citizens”). 544 U.S. at 378 (Ginsburg, J., dissenting) (quotation omitted). See Michaels, supra note 7, p. 539. Small v. United States, 544 U.S. 385, 388 (2005) (quotation omitted). Id. at 390. 544 U.S. at 372–84 (Ginsburg, J., dissenting). Id. at 378. Breyer and Ginsburg sometimes differ on the degree of integration consistent with international harmony. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), Ginsburg (speaking for the Court) held that 28 U.S.C. § 1782’s provision authorizing judicial assistance to foreign or international tribunals applied to the European Commission. “We question whether foreign governments would in fact

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A more traditional approach to the problem of regulatory conflict is found in the opinions of Justices Scalia and Thomas, who generally stick with the presumption against extraterritoriality. Concurring in Empagran, Scalia (joined by Thomas) concluded that U.S. antitrust laws “should be read in accord with the customary deference to the application of foreign countries’ laws within their own territories.”26 If this does not sound like the presumption against extraterritoriality in its classic form,27 that is likely because a direct invocation of the presumption would have sat awkwardly with Scalia’s concession in Hartford that the presumption did not apply in antitrust cases.28 Writing for the Court more recently in Morrison, Justice Scalia (again joined by Thomas) asserted that the presumption against extraterritoriality applies “in all cases”29 and proceeded to apply it to the Securities Exchange Act, holding that its antifraud provisions govern only purchases and sales made in the United States. Morrison, however, subtly shifts the focus of the presumption against extraterritoriality away from the location of the conduct and toward the location of the effects. The deceptive conduct alleged in Morrison took place in Florida, while the purchase of securities occurred in Australia. But Justice Scalia found the location of the conduct irrelevant. “[T]he focus of the Exchange Act is not upon the place where the deception originated,” he wrote, “but upon purchases and sales of securities in the United States.”30 This is something of a departure for Scalia and Thomas. Writing for the Court in Pasquantino and dissenting in Small, Justice Thomas (joined in both cases by Scalia) took the more traditional view that the presumption against extraterritoriality was inapplicable when the prohibited conduct occurred in the United States. In Pasquantino, Thomas reasoned, the presumption did not bar application of the wire-fraud statute to a scheme to evade Canadian taxes because the statute prohibited the scheme and not its success: “This domestic element of petitioners’ conduct is what the Government is punishing in this prosecution.”31 Dissenting in Small, Justice Thomas again found the presumption against extraterritoriality inapplicable where the conduct (possession of a firearm by a felon) occurred in the United States. The presumption against extraterritoriality, he wrote, “restrict[s] federal statutes from reaching conduct beyond U.S. borders” but does not “restrict[] a federal statute from reaching conduct within U.S. borders.32

26 27

28 29 30 31

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be offended by a domestic prescription permitting, but not requiring, judicial assistance,” she wrote. 542 U.S. at 261. Justice Breyer dissented. Grafting American discovery onto foreign proceedings, he thought, will “promote disharmony among national and international authorities, rather than the harmony that § 1782 seeks to achieve.” Id. at 269 (Breyer, J., dissenting). F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 176 (2004) (Scalia, J., concurring in the judgment). Compare EEOC v. Arabian American Oil Co., 499 U.S. 244, 246 (1991) (“It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’”) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814 (1993) (Scalia, J., dissenting). Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, 2881 (2010). Id. at 2884. Pasquantino v. United States, 544 U.S. 349, 371 (2005). In Morrison, Justice Scalia distinguished Pasquantino on the ground that the wire-fraud statute prohibits any fraud, while § 10(b) of the Securities Exchange Act punishes only fraud “in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered.” 130 S. Ct. at 2887 (quoting 15 U.S.C. § 78j(b)). But if the language of the Act was so clear, it should have been unnecessary to invoke the presumption in Morrison. Conversely, the broad language of the wire-fraud statute at issue in Pasquantino creates precisely the kind of ambiguities the Court has previously resolved with the presumption. Small v. United States, 544 U.S. 385, 400 (2005).

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One way of explaining the disjunction between the Scalia–Thomas positions in Morrison on the one hand and Pasquantino and Small on the other is to note that Pasquantino and Small were criminal prosecutions brought by the United States, whereas Morrison was a class action on behalf of foreign investors. Certainly the participation of the United States was important to Justice Thomas in Pasquantino. The defendants’ main argument in that case was that their prosecution was barred by the common law revenue rule – a rule prohibiting the enforcement of foreign tax law – which was traditionally justified by a desire to avoid friction with foreign nations.33 Thomas concluded that the intervention of the executive branch removed this concern: “[W]e may assume that by electing to bring this prosecution, the Executive has assessed this prosecution’s impact on this Nation’s relationship with Canada, and concluded that it poses little danger of causing international friction.”34 Thomas similarly pointed to executive discretion in Small as mitigating the unreliability of foreign convictions as a sign of dangerousness.35 In Morrison, by contrast, Scalia pointed with disapproval to the perception that the United States had “become the Shangri-La of class-action litigation for lawyers representing those allegedly cheated in foreign securities markets.”36 Nevertheless, the Court’s broad ruling in Morrison would appear to foreclose government enforcement of Section 10(b) as well.37 If the Breyer–Ginsburg approach defines extraterritoriality in terms of effects, and if Morrison shifts the Scalia–Thomas approach in the same direction, it is tempting to find some convergence in the Supreme Court’s recent cases – tempting but premature. The focus on effects in Morrison is perhaps too equivocal. Further, Justice Breyer concurred only in part in Morrison,38 while Justice Ginsburg joined Justice John Paul Stevens’s opinion, which reasserted the new Breyer–Ginsburg canons and found the presumption against extraterritoriality to have “only marginal relevance.”39 Many of the Justices have particular biases that tip them one way or the other in close cases.40 The Court’s extraterritoriality jurisprudence seems likely to remain a mess for some time. Finally, it is worth noting that the Charming Betsy canon and international law are largely absent from the Court’s recent statutory interpretation cases. In Spector, Justice Scalia’s dissent would have grounded the “internal affairs” rule on international law,41 33 34 35 36

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38 39 40 41

See William S. Dodge, Breaking the Public Law Taboo, 43 Harv. Int’l L.J. 161, 173–76 (2002). Pasquantino, 544 U.S. at 369. Small, 544 U.S. at 403 (Thomas, J., dissenting). Morrison, 130 S. Ct. at 2886; see also Paul B. Stephan, Empagran: Empire Building or Judicial Modesty?, infra pp. 553–58 (suggesting that concerns about distinctive aspects of the U.S. civil justice system influenced the Empagran Court to limit the reach of antitrust law). But see Morrison, 130 S. Ct. at 2894 n.12 (Stevens, J., concurring in the judgment) (asserting that Morrison does not limit the Securities and Exchange Commission (SEC)). Shortly after Morrison, Congress tried to restore the SEC’s enforcement authority by amending Section 27 of the Securities Exchange Act to give the federal courts jurisdiction over SEC actions involving conduct in the United States even if the transaction occurs abroad. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376, § 929P(b) (2010). It is unclear whether this amendment will prove effective, given the strong distinction Morrison draws between the subject matter jurisdiction of the federal courts (which Congress amended) and the substantive prohibitions of the Securities Exchange Act (which Congress did not). See Morrison, 130 S. Ct. 2876–77. 130 S. Ct. at 2888 (Breyer, J., concurring in part and concurring in the judgment). Id. at 2892 (Stevens, J., concurring in the judgment). Justice Breyer, for example, seems especially sensitive to protests from foreign governments. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 271–72 (2004) (Breyer, J., dissenting alone). Spector v. Norwegian Cruise Lines Ltd., 545 U.S. 119, 150 (2005) (Scalia, J., dissenting).

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while Justice Ginsburg’s concurring opinion would have limited it to matters directly governed by international law.42 But the plurality chose to treat the “internal affairs” rule as a matter of “international comity” rather than international law.43 Empagran similarly treats the extraterritorial application of antitrust law as a question of “prescriptive comity,” and it cites the Charming Betsy canon of avoiding violations of international law only to twist it into a quite different canon of avoiding interference with the sovereign authority of other nations.44 In two cases involving the Foreign Sovereign Immunities Act,45 the Court looked not to international law to guide its interpretation but to the Act’s purpose as “a gesture of comity between the United States and other sovereigns.”46 Comity rather than international law seems to be the touchstone of the Supreme Court’s recent statutory interpretation cases. The reason for the marginal relevance of the Charming Betsy canon today seems plain. The rules of customary international law do not allocate jurisdiction in a way that either Breyer–Ginsburg or Scalia–Thomas find desirable. Those rules allow concurrent regulatory jurisdiction in a large number of cases.47 So the Justices must turn to other presumptions – the presumption against extraterritoriality in the case of Scalia and Thomas, newly minted presumptions in the case of Breyer and Ginsburg – to achieve the “harmony” they desire. But if international law does not constrain the reach of U.S. law, it is worth asking whether the Supreme Court should do so based on its own sense of good international relations. The better approach might well be to permit some dissonance and allow the political branches to decide whether and how to get in tune with other nations.48 42 43 44 45 46

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Id. at 143–45 (Ginsburg, J., concurring in part and concurring in the judgment). Id. at 130–31 (plurality opinion). Empagran, 542 U.S. at 164. Republic of Austria v. Altmann, 541 U.S. 677 (2004); Dole Food Co. v. Patrickson, 538 U.S. 468 (2003). Dole Food, 538 U.S. at 479; see also Altmann, 541 U.S. at 696 (quoting Dole Food). In both cases, that characterization led the Court to apply the Act based on the state of affairs at the time of suit rather than the state of affairs at the time of the conduct giving rise to the suit. See The Case of the S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 30–31 (Sept. 7). See William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101, 158–67 (1998).

Response Essay Empagran: Empire Building or Judicial Modesty? Paul B. Stephan∗

Professor Ralf Michaels’s analysis of Empagran1 is trenchant, apt, and persuasive. I do not wish to criticize it so much as suggest a different perspective that ties the decision to other historical patterns and contemporary trends. Professor Michaels sees the decision as primarily a one-off and jarring event. The Court does not normally stand up for price fixers, and the normative implications of any outcome in their favor are disturbing. But it is also possible to see the case as reflecting broader concerns about judicial capacity and civil justice in the U.S. legal system. It is just possible that such concerns might override the unambiguous cost of letting price fixers off the hook. My suggestion is not that Empagran lacks an international dimension. Rather, I suggest that the opinion rests not on the abstract issue of extraterritorial jurisdiction, but on an empirical observation about comparative civil procedure. The decision makes sense if the Court, as it looks around the world, has concluded that there is something exceptional and possibly unwise about the way the United States conducts civil litigation. Forty years of case law indicates that the Court has reached exactly this judgment. Its unease has not led the Court to confront and reform the aspects of the U.S. litigation regime that make the system exceptional, but it has encouraged a certain modesty in the resolution of disputes about the extent of federal jurisdiction. Seen from this perspective, Empagran is part of a long story about judicial capacity, not an instance of judicial activism in aid of American Empire. First, let me indicate my areas of agreement with Professor Michaels. He correctly notes that price fixing constitutes core misconduct with no offsetting social benefits. A rich literature, which I find persuasive, argues that overdeterrence is not a significant problem because of the absence of socially valuable activity anywhere in the neighborhood of price fixing, and that underdeterrence is a significant issue.2 To step away from the imposition ∗

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John C. Jeffries, Jr. Distinguished Professor and Elizabeth D. and Richard A. Merrill Professor, University of Virginia School of Law. I am grateful to Bill Dodge for his comments and suggestions. Ralf Michaels, Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century, supra pp. 533–46. The Court noted this point thirty years earlier. Pfizer, Inc. v. Government of India, 434 U.S. 308, 315 & n.14 (1978). The scholarly literature stems from Robert Cooter’s seminal illumination of the distinction between prices and sanctions and his analysis of the conditions where sanctions optimize welfare. Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523 (1984).

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of liability on price fixers in the face of inadequate alternatives in the jurisdictions where the victims reside, then, is to pass up a great opportunity to maximize welfare through effective antitrust policy. Explaining this default is challenging, and Professor Michaels’s speculations are entirely apposite. Professor Michaels describes the several stages in which an attack on a price-fixing cartel proceeds. First individual governments exact penalties. Then the victims seek compensation. But, he notes, the second stage is complicated by the variations in capacity of national civil justice systems. Many states in the developing world have slow, ineffective, and corrupt civil courts. Relegating foreigners to their national courts for compensation means that many victims do not get compensation. And a failure to force the cartel members to disgorge their ill-gotten gains alters the cost-benefit calculus in favor of forming a cartel in the first place. By focusing on the divide between developed country and developing country civil justice, Professor Michaels elides another meaningful distinction. Arguably, the gap between U.S. mechanisms of civil justice and those of the rest of the world is, if anything, greater than that between the institutions of other developed countries and those of the developing world.3 The unique features of U.S. civil justice include a right to a jury trial, no risk that plaintiffs will pay the other side’s attorneys fees, generous and intrusive pretrial discovery, the class action device, and the possibility of super-compensatory recoveries. A civil suit brought in, for example, England, Canada, Germany, Australia, or France would have none of these attributes.4 Each of these features increases the settlement value of a claim, ceteris paribus. And the only features of other countries’ civil justice systems that might weigh in the other direction, increasing a claim’s settlement value relative to its worth in the United States, are random and opaque. It is just possible that local bias and judicial misconduct might make a claim more valuable in another country.5 But U.S. courts are themselves not free from this risk.6 As I argue elsewhere in this volume, the Supreme Court is mindful of this point. My review of modern treaty disputes links the Court’s evident enthusiasm for the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards to its more general concerns about potential excesses of the U.S. civil justice system.7 Many other cases document the growth of these concerns over the last forty years.8 The Court’s willingness to enforce choice-of-forum clauses in commercial agreements,9 to narrow

3

4 5

6 7 8 9

If there were any doubt about the Court’s awareness of and concern about this gap, Morrison v. National Australia Bank Ltd., 130 S.Ct. 2869 (2010), surely removed it. There the Court justified a strong presumption against applying a U.S. statute extraterritorially by referring to the United States as the “Shangri-La of class-action litigation for lawyers representing those allegedly cheated.” Id. at 2886. See generally Paul R. Dubinsky, Is Transnational Litigation a Distinct Field?: The Persistence of Exceptionalism in American Procedural Law, 44 Stan. J. Int’l L. 301 (2008). E.g., Chevron’s $27 Billion Problem, Forbes, Jul. 13, 2009, p. 92 (describing lawsuit dismissed from United States in favor of an Ecuadorian forum that grew in value after a change in political regime and alleged corruption of Ecuadorian court). E.g., Loewen Group, Inc. v. United States, ICSID Case No. ARB(AF)/98/3, Award (June 26, 2003), 7 ICSID Rep. 442 (2005) (documenting excesses of Mississippi civil court). See Chapter 10, pp. 350–51. I previously made some of these observations in Paul B. Stephan, A Becoming Modesty – U.S. Litigation in the Mirror of International Law, 52 DePaul L. Rev. 627 (2002). Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).

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the scope of civil liability under the securities laws,10 and to heighten the requirements for stating an adequate claim for antitrust injury,11 among many other decisions, reflect a belief that the U.S. civil justice system needs restraint. The modern Court has not sought to undo the progressive reforms of civil litigation, beginning with the adoption of the Federal Rules of Civil Procedure in 1938 and unfolding through the 1960s. It has, however, tried to construct boundaries on civil litigation, especially in areas that entail substantial judicial discretion and modest legislative guidance. Empagran fits into this pattern. The Court states that the peculiar nature of U.S. civil justice multiplies the value of private claims even where the substantive law of a foreign jurisdiction mirrors that of the United States.12 Its holding applies only to suits brought by private plaintiffs. The Foreign Trade Antitrust Improvements Act of 1982 does not constrain the power of the U.S. government to seek criminal or civil remedies for antitrust violations, as long as the domestic effect of such violations is “direct, substantial, and reasonably foreseeable.”13 The United States argued as amicus that excluding private suits when foreign victims could not show that their injury depended on U.S. conduct strengthens its hand by making it easier for it to trade amnesty for inculpatory evidence.14 The case, in short, involved only the scope of private civil suits, not the scope of the antitrust laws as applied by the government. And the Court seemed to find attractive an argument that limiting private plaintiffs would empower public prosecutors. The point is not that the Court has correctly diagnosed a problem with the mechanisms of U.S. civil litigation and has chosen appropriate, policy-driven responses. The Court’s decisions do not suggest a conviction that any particular mechanism is awry. Presumably the Court would address directly, either through its decisions or by amendment of the

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Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 740–42 (1975). Even more on point is Morrison v. National Australia Bank Ltd., 130 S.Ct. 2869 (2010), where the Court, as in Empagran, used territoriality as a device for limiting the scope of the Securities Exchange Act of 1934. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Cf. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 167–68 (2004): Regardless, even where nations agree about primary conduct, say, price fixing, they disagree dramatically about appropriate remedies. The application, for example, of American private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable controversy. See, e.g., 2 ABA Section of Antitrust Law, Antitrust Law Developments 1208–1209 (5th ed. 2002). And several foreign nations have filed briefs here arguing that to apply our remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their own domestic antitrust laws embody. E.g., Brief for Government of Federal Republic of Germany et al. as Amici Curiae 2 (setting forth German interest “in seeing that German companies are not subject to the extraterritorial reach of the United States’ antitrust laws by private foreign plaintiffs – whose injuries were sustained in transactions entirely outside United States commerce – seeking treble damages in private lawsuits against German companies”); Brief for Government of Canada as Amicus Curiae 14 (“treble damages remedy would supersede” Canada’s “national policy decision”); Brief for Government of Japan as Amicus Curiae 10 (finding “particularly troublesome” the potential “interfere[nce] with Japanese governmental regulation of the Japanese market”). 15 U.S.C. § 6a(1). To be precise, the Act bars the government as well as private litigants from challenging anticompetitive activity that does not meet its domestic effects test, but otherwise imposes no limitations on government suits. Private litigants, by contrast, must also satisfy an additional standing test by demonstrating that the particular actions that caused their injury satisfies this test. Brief of the United States as Amicus Curiae Supporting Petitioners, F. Hoffmann-La Roche Ltd. v. Empagran S.A., No. 03–724, at 19–25.

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Federal Rules, those problems that it confidently had determined to exist. Rather, the decisions indicate an unease that results in a predisposition not to approve marginal adjustments in civil litigation that make high-settlement-value suits more likely. This unease has persisted for four decades now. It origins are debatable. Perhaps the tendency is the one clear payoff that Republicans have gotten for appointing the overwhelming majority of Supreme Court Justices during the period.15 However widely Republican appointees may diverge on cultural or political issues, they may share a general preference for big business and a skepticism about civil litigation as a tool to promote social policies. Perhaps the country has changed, and the hero-litigator in pursuit of social justice has been superseded in the popular imagination by the cynical, greedy, and corrupt plaintiffs’ attorney. Perhaps the rise of a small class of extraordinarily rich and influential plaintiffs’ attorneys has led to a reaction among the less wealthy establishment types who tend to populate the judiciary. Perhaps changes in intellectual fashion within the academy have resulted in scholarship that provides more ammunition to critics of the U.S. civil litigation regime. Neither I nor anyone else knows for sure. What seems clear enough, however, is that a majority of the Justices are skeptical whether civil litigation leads to justice and that, in areas where they believe themselves to possess lawmaking discretion, they are willing to limit access to the courthouse. Seen from this perspective, Empagran represents not a default in the battle against price fixing, but a willingness to exploit legislative ambiguity to constrain private, but not public, enforcement of antitrust law. Private enforcement, given the mechanisms that make up U.S. civil litigation, presents a serious risk of overdeterrence. Public enforcement may not. In the face of legislative ambiguity, the Court finds the risk that public enforcement will insufficiently deter price-fixing cartels to be less serious than the risk that private enforcement will function as a tax on potentially desirable economic behavior. But, one might ask, how can this rationale extend to price fixing? Even if a concern about overdeterrence of socially desirable behavior might explain the cutting back of civil litigation in some contexts, it cannot reasonably apply to this particular subject. As noted earlier, there simply is not any socially desirable behavior in the neighborhood of a price-fixing cartel. As a result, overdeterrence drops out as a concern. Here one encounters another general structural issue that a majority of the Court takes seriously – judicial capacity. Respondents in Empagran urged the Court to approach the question of extraterritorial jurisdiction on a case-by-case basis. The Court, they argued, could defer to foreign regulatory judgments when appropriate but still leave U.S. litigation intact in areas of core antitrust misconduct. The Court rejected this suggestion, citing the difficulties that case-by-case approaches present: In our view, however, this approach is too complex to prove workable. The Sherman Act covers many different kinds of anticompetitive agreements. Courts would have to examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint venture, in respect to both primary conduct and remedy. The legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceedings – to the point where procedural costs and delays could themselves threaten interference with a foreign nation’s 15

Since President Nixon took office in 1969, Republican Presidents have appointed twelve Justices to the Court, Democrats four.

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ability to maintain the integrity of its own antitrust enforcement system. Even in this relatively simple price-fixing case, for example, competing briefs tell us (1) that potential treble-damages liability would help enforce widespread anti-price-fixing norms (through added deterrence) and (2) the opposite, namely that such liability would hinder antitrust enforcement (by reducing incentives to enter amnesty programs). . . . How could a court seriously interested in resolving so empirical a matter – a matter potentially related to impact on foreign interests – do so simply and expeditiously?16

Courts, the Court says, must work with tools they have and take account of the downstream implications of their decisions as precedents. They cannot carve out exceptions to general statutory rules based solely on their particular policy judgments. Consider how the common law method operates in U.S. antitrust law. Section One of the Sherman Act forbids contracts, combinations, or conspiracies “in restraint of trade.” Section Two outlaws efforts to “monopolize” trade or commerce. For nearly a century, the Court has understood these provisions as a delegation by the legislature of substantive lawmaking authority. By using common law terms, the Court argued, Congress meant the judiciary to develop the substantive law of antitrust using a case-by-case methodology.17 Judges remain free to build and to prune doctrine in the face of new cases and new insights. In particular, the Court has asserted a freedom to move back and forth between different legal standards in assessing common fact patterns. Over more than thirty years, for example, it has abandoned several judicially created bright-line rules forbidding particular collusive behavior in favor of a more open-ended rule of reason that allows defendants to justify their conduct.18 In the definition of prohibited conduct, then, the Court has manifested its comfort with a case-by-case approach. Application of the Foreign Trade Antitrust Improvements Act of 1982 is different. It specifies where the Sherman Act in its entirety does and does not apply. If conduct does not have “a direct, substantial, and reasonably foreseeable effect” on domestic commerce, then the Sherman Act does not regulate it.19 What the 1982 Act does not specify, and what the Empagran Court therefore had to decide, is a question of standing: if the Sherman Act does regulate certain conduct because the conduct has some impact on domestic commerce, does that mean that all persons injured by that conduct may bring a claim, even if the victim’s injury has no connection to domestic commerce? This standing question is not partial or fact dependent: if the answer is yes for price fixing, it also is yes for any Sherman Act theory. The implications of expanding access to U.S. courts for foreign victims become clearer when one considers the kinds of claims that might arise. Imagine a claim that a monopolist has abused its power by insisting that a customer buy extra products in addition to that which the person monopolizes. (Remember that it is the abuse of monopoly power, and not the exercise of monopoly power as such, that Section Two of the Sherman Act outlaws).20 Analysis is complicated to the extent that a product reflects technological 16 17 18

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542 U.S. at 168–69. United States v. Standard Oil Co., 221 U.S. 1, 60–61 (1911). E.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007) (retail price maintenance); Texaco Inc. v. Dagher, 547 U.S. 1 (2006) (joint marketing agreement); State Oil Co. v. Khan, 522 U.S. 3 (1997) (vertical maximum price fixing); Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977) (territorial restrictions on retail sales). 15 U.S.C. § 6a(1). I elide the separate references to import and export transactions in this provision. Cf. United States v. Microsoft Corp., 253 F.3d 34, 89–96 (D.C. Cir. 2001) (applying rule of reason to claim that Microsoft improperly bundled its Web browser with its operating system).

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innovation and the monopoly rests on network effects (i.e., welfare gains resulting from particular forms of standardization). Determining whether the producer is abusing its monopoly, or instead searching for an extension of network effects, is difficult and not readily susceptible to judicial determination. Moreover, a mistaken determination would likely generate significant welfare losses. This is likely to be exactly the kind of inquiry that should not be skewed in favor of plaintiffs through rules that exaggerate the settlement value of objectively nonmeritorious claims. Yet expanding standing of private litigants to bring such claims would produce exactly this effect. This point would have been obvious to the Court, and to Justice Breyer in particular, at the time that it decided Empagran. Breyer, by profession an antitrust scholar and by avocation the Court’s greatest Europhile, was certainly aware of the ongoing battles between U.S. and European competition authorities, extending across the Clinton and Bush administrations, over the proper standards to apply to U.S. producers in the technology sector. He would have appreciated in particular the potential for competition law to become a disguised form of protectionism and an instrument for attacking U.S. technological leadership.21 He would have understood that private suits in the United States can operate as a tax on legally risky but potentially desirable extensions of market power based on technological innovation, because of the asymmetric risk generated by aspects of U.S. civil procedure such as juries, class actions, contingency fee arrangements, extensive pretrial discovery, and the possibility of punitive damages. Private suits in other jurisdictions would not present these concerns because they would not employ such procedures. Empagran, then, does not only project the Court’s indifference to the victims of core anticompetitive activity in countries encumbered by weak legal systems. It also offers yet more evidence of the modern Court’s awareness of U.S. exceptionalism in the field of civil litigation, coupled with frustration about the limited means that the Court has to respond to its concerns. Were Congress to adopt a special rule extending standing for the victims of price fixing, the Court, one supposes, would welcome the innovation and vigorously apply it. But subjecting U.S. technological innovators to overly burdensome litigation was the necessary consequence of employing the only tool available to the Court. This it would not do. 21

See generally Paul B. Stephan, Global Governance, Antitrust, and the Limits of International Cooperation, 38 Cornell Int’l L.J. 173 (2005).

V.E

International Law and the War on Terror

Main Essay The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition David Golove∗

In a volume dedicated to the history of international law in the Supreme Court, it would be premature to attempt an assessment of the historical significance of the war on terror cases that the Court decided between 2004 and 2008.1 Yet, if their future impact is necessarily speculative, it is not too early to consider the decisions in a retrospective mode. Do they mark a radical departure from past understandings of the Constitution and of the role of the judiciary, as some have claimed, or are they consonant with the core themes of American constitutional history? In this essay I argue that the decisions are very much in line with American constitutional history, but that they are so in a complex way. It should be candidly acknowledged that the Court did not hold itself bound to follow seemingly settled doctrines or the holdings of its previous war powers cases. Yet, in assessing the fidelity of the war on terror cases to American constitutional history, it would be a mistake to focus narrowly on doctrinal rulings and not to appreciate the profoundly different circumstances in which the earlier constitutional rules were developed. From this vantage point, the war on terror cases are indeed faithful to the spirit of the constitutional framework for war that has persisted throughout our constitutional history – what I call, with perhaps not a little aspirational content, our “Just War constitutional tradition.” What connects the war on terror cases to the constitutional past is the Court’s insistence that war is governed by law and that the governing law – the laws of war – must reflect a reasonable balance of fundamental values adapted to the ever-changing exigencies of armed conflict. The Constitution has demanded, and continues to demand, fidelity to a standard of civilized warfare.

I. Doctrinal Departures in the War on Terror Cases Critics of the war on terror cases are certainly correct that the Court rejected the application of a number of long-settled doctrines and even the holdings of some of its landmark war powers cases. Indeed, some of its rulings were breathtaking in their willingness to ∗ 1

Hiller Family Foundation Professor of Law, New York University School of Law. See Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004).

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break new doctrinal ground. Consider four of the Court’s rulings that departed radically from previous doctrinal understandings. First, in Hamdi v. Rumsfeld, the Court held, for the first time in U.S. history, that an alleged enemy combatant was entitled to some protections of the Bill of Rights.2 This aspect of the decision generated little controversy because Hamdi was a U.S. citizen being detained in the United States. Yet it had been the consistent understanding from the Founding through World War II that constitutional rights were inapplicable to U.S. citizens who qualified as public enemies. Indeed, it is impossible to fathom the denial of Bill of Rights’ protections to every person residing in the territory of the Confederacy during the Civil War on any other basis.3 Second, if Hamdi rejected past understandings by extending Fifth Amendment due process to a suspected U.S. citizen enemy combatant, Boumediene v. Bush went dramatically further in holding that at least some suspected alien terrorists detained outside the United States have a constitutional right to present habeas corpus petitions to U.S. courts.4 In so ruling, the Court declined to follow longstanding constitutional doctrine in two crucial respects. First, for the first time in U.S. history, it extended constitutional rights extraterritorially to aliens,5 declining to follow its World War II–era decision in Johnson v. Eisentrager,6 as well as a more recent decision, United States v. VerdugoUrquidez.7 More broadly, it disregarded the fact that non-extraterritoriality was accepted doctrine throughout most of U.S. constitutional history.8 Second, as in Hamdi, the Court ignored the settled understanding that enemy combatants are not entitled to constitutional rights, but going far beyond Hamdi, it extended that ruling from U.S. citizens in the United States to suspected alien enemy combatants abroad. To be sure, the Court ruled only that the right to seek habeas relief is constitutionally protected and applied this ruling only to Guantánamo Bay, Cuba. Still, the Court breached the bright-line rule of strict territoriality and opened the possibility that other rights may be extended to other territories where the U.S. military operates. Third, in what was probably its most consequential ruling from a practical perspective, the Court in Rasul v. Bush, and then again in Boumediene, insisted on a supervisory role for the judiciary over the executive branch’s detention of suspected alien terrorists held outside the United States. In the now famous Eisentrager case, the Court had ruled precisely to the contrary in a habeas action brought by Nazi war criminals who were imprisoned in Germany after being convicted in U.S. military tribunals abroad. 2 3

4 5 6 7 8

See 542 U.S. at 524–39 (extending protections of Fifth Amendment due process to alleged enemy combatant). See The Prize Cases, 67 U.S. 635 (1863) (rejecting application of constitutional rights to public enemies, even U.S. citizens, and defining enemy status by reference to residence, not actual hostility or disloyalty); see also Ex parte Quirin, 317 U.S. 1, 37–45 (1942) (rejecting application of Fourth, Fifth, and Sixth Amendments to enemies, including U.S. citizens). However, Hamdi could be viewed simply as an extension of the traditional understanding that persons detained as enemy aliens in the United States can bring habeas corpus petitions to challenge the Executive’s determination that they are enemy nationals. See Stephen I. Vladeck, Enemy Aliens, Enemy Property, and Access to the Courts, 11 Lewis & Clark L. Rev. 963 (2007). Boumediene, 553 U.S. at 771. Id. at 753–71. 339 U.S. 763 (1950) (declining to apply Fifth Amendment to enemy aliens outside U.S. territory). 494 U.S. 259 (1990) (declining to apply Fourth Amendment to searches by U.S. officials of alien-owned property outside the United States). See Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 83–117 (1996).

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Eisentrager made clear that the judiciary has little or no role in overseeing executive wartime measures, especially with respect to prisoners held outside U.S. territory.9 In Rasul, the Court interpreted the habeas statute as rejecting Eisentrager’s narrow interpretation of judicial jurisdiction.10 When Congress responded by amending the habeas statute to reinstate the Eisentrager rule,11 the Court upped the ante further, ruling in Boumediene that Congress had thereby violated the Suspension Clause and that, absent a valid congressional suspension, the Court’s habeas jurisdiction is constitutionally mandated.12 Finally, in a more subtle – but no less consequential – departure from existing precedents, the Court in Hamdan refused to follow its ordinary practice of deferring to executive branch interpretations of treaty provisions. It rejected the Eisentrager Court’s view that the Geneva Conventions were to be administered by executive branch officials, not the courts,13 and it interpreted a crucial provision of the Conventions, so-called Common Article 3, without paying any deference to the executive branch’s considered views.14 The Court’s refusal even to explain why it was not deferring was particularly striking because the Executive’s interpretation of Common Article 3 played a critical role in its overall legal justification for U.S. detention and interrogation policies.15 Indeed, the Court’s ruling inescapably raised the question whether high government officials had ordered, knowingly or otherwise, the commission of acts constituting war crimes under both domestic and international law.16 As this brief description makes clear, the Court did push constitutional doctrine in substantially new directions and did assert a newly prominent judicial role. These aspects of the decisions have led to charges of judicial activism. Disregarding traditional doctrine in such a delicate and perilous area, critics argue, is particularly inappropriate because the Constitution assigns the political branches plenary authority over war and national security.17 In my view, this criticism is unjustified and suffers from a myopia that obscures the larger constitutional framework motivating the Court’s approach. The measure of the 9 10 11 12 13 14 15

16

17

339 U.S. at 777–79. See Rasul v. Bush, 542 U.S. 466, 476–80 (2004). See Detainee Treatment Act, § 1005(e), 109 Pub. L. No. 148, 119 Stat. 2680 (2005); Military Commissions Act of 2006, § 7, 109 Pub. L. No. 355, 120 Stat. 2600, 2635–36 (2006). See Boumediene v. Bush, 553 U.S. 723, 771 (2008). See Hamdan v. Rumsfeld, 548 U.S. 557, 627–28 (2006). See id. at 629–31. See Memorandum by Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees, Jan. 22, 2002, at 5–10. Common Article 3 explicitly prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 3406, 75 UNTS 135, arts. 3(1)(a), 3(1)(c). The Bush administration had insisted that these obligations did not apply, but the Court’s ruling made that position impossible to sustain. Because violations of Common Article 3 are potentially grave breaches of the Geneva Conventions and were, at that time, violations of the War Crimes Act, see 18 U.S.C. § 2441 (2002), the Court’s ruling raised the specter of criminality. These criticisms formed the core of various dissents written by Justices Thomas and Scalia. See Boumediene, 553 U.S. at 826–42 (Scalia, J., dissenting); Hamdan, 548 U.S. at 678, 679–719 (Thomas, J., dissenting); Hamdi, 542 U.S. at 579, 580–94 (Thomas, J., dissenting); Rasul, 542 U.S. at 488, 498–506 (Scalia, J., dissenting).

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Court’s consistency to constitutional tradition cannot be whether it woodenly applied past doctrine to the war on terror, but whether, in the face of profound changes in the nature of warfare, in background political/jurisprudential ideas about international law, and in the executive branch’s willingness to acknowledge traditional limits on its powers, the Court developed doctrines capable of preserving the fundamental tenets of the traditional constitutional framework.18 In this respect, the Court’s decisions were a marked success. Moreover, a more sophisticated look at historical practices reveals that some of its most controversial rulings actually have stronger roots in traditional constitutional doctrine than has been widely appreciated.

II. The Contours of the Just War Constitution I begin by sketching the basic features of the traditional American Just War Constitution, before considering the war on terror cases with this framework in mind. The central ideal of the traditional model was its insistence on the rule of law in the conduct of war. From the Revolutionary War through the great conflicts of the twentieth century, the American constitutional order rejected the maxim, inter arma silent leges. That rejection was not inconsistent with a view that war is, and ought to be, harsh and sometimes brutal. Rather, it reflected a belief that warfare is appropriately subject to legal constraint and that the governing rules – the laws of war – ought to be consonant with the demands of civilized conduct.19 Constitutional doctrine functioned to uphold these essential commitments. From the outset, it was widely agreed that the President, in his role as Commander-in-Chief, was bound to observe the laws of war in conducting military operations.20 The laws of war were also a part of the laws that the President was charged to “take Care . . . be faithfully executed.”21 This understanding both constrained the President and augmented his powers. Indeed, incorporation of the laws of war into municipal law provided the legal basis for the Washington administration’s non-statutory neutrality prosecutions during 18 19

20 21

See generally Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993). Much of this part is taken from two unpublished manuscripts. See David Golove, A Just War Constitution? Historical Practice, Present Prospects; David Golove, The Commander-in-Chief, the Law of War and the Constitution. For helpful discussion, see Michael D. Ramsey, Torturing Executive Power, 93 Geo. L.J. 1213, 1245–49 (2005). U.S. Const. art. II, § 3. Hamilton and Madison agreed on this point in their celebrated Pacificus and Helvidius essays debating the scope of executive power during the neutrality crisis of 1793. See Alexander Hamilton, Pacificus No. 1 (June 29, 1793), in 15 The Papers of Alexander Hamilton 40, 43 (Harold C. Syrett ed., 1969); James Madison, Helvidius Number 2 (Aug. 31, 1793), in 15 The Papers of James Madison 80, 86 (Thomas A. Mason, Robert A. Rutland, & Jeanne K. Sisson eds., 1985); see also The Prize Cases, 67 U.S. 635 (1863) (ruling that the constitutionality of President Lincoln’s naval blockade of Confederate ports and confiscations of private property at sea turned on the consistency of these measures with the laws of war). It has become nearly conventional wisdom that the Court’s decision in The Paquete Habana, 175 U.S. 677 (1900), recognized a presidential power to disregard customary international law (which, in that context, meant the laws of war) by a “controlling executive . . . act.” Id. at 700. In fact, The Paquete Habana said nothing of the sort and, indeed on close reading, is entirely consistent with the traditional view of the President’s powers. See William S. Dodge, The Paquete Habana: Customary International Law as Part of Our Law, in International Law Stories 175, 195–98 (John E. Noyes, Laura A. Dickinson & Mark W. Janis eds., 2007).


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the neutrality crisis.22 Even more dramatically, the laws of war displaced the Bill of Rights as the governing legal code in dealing with enemies.23 It would be a mistake, therefore, to view the traditional war powers framework as based on a naive view that narrowly constrained the use of legitimate war measures. If the President’s duty to observe the laws of war is a powerful testament to the force of the traditional Just War constitutional framework, the fact that Congress was widely understood to be under a similar duty is even more revealing. Although there were occasional disputes over which branch could authorize belligerent measures once Congress had declared war,24 there was little disagreement about Congress’s duty to observe the laws of war when it legislated such measures.25 The Supreme Court nearly affirmed the principle in the great Civil War case, Miller v. United States, but finding the Confiscation Act consistent with the laws of war, it refrained from deciding the issue.26 Here, again, it was also agreed that when Congress did exercise its war powers – for example, by authorizing “captures” under its power to make “Rules concerning Captures on Land and Water”27 – it could act without regard to the Bill of Rights, which was superseded by the laws of war.28 Finally, the traditional constitutional framework embraced an active role for the judiciary in the development of the law of war and in ensuring executive compliance with its obligations. The expectations for the judiciary are reflected in the Framers’ elaborate efforts to ensure that all cases potentially raising foreign policy questions, including those governed by treaties and the law of nations, would fall within the Article III judicial power.29 Prize jurisdiction was especially significant because many of the most delicate and controversial questions under the laws of war were subject to judicial resolution 22

23

24

25

26

27 28 29

See David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitutiong, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U. L. Rev. 932, 1028–35 (2010); Chapter 1, pp. 25–26. For later recognition of the same point, see The Prize Cases, 67 U.S. at 668–69 (endorsing power of the President, without specific congressional authority, to exercise powers under the laws of war in the event of a foreign invasion or rebellion); id. at 682, 687–89 (Nelson, J., dissenting) (recognizing the vast additional powers that the President may exercise when the laws of war apply, but insisting that only Congress can, by exercising its power to declare war, make them part of the laws that the President must faithfully execute). See, e.g., The Prize Cases, 67 U.S. at 671–74 (rejecting application of the Bill of Rights to confiscation of private property under the laws of war). This is not to suggest that executive officials and military officers always observed the laws of war in practice. Compliance with law is always imperfect, and compliance with public law – which requires government officials to enforce the law against themselves – is all the more imperfect. For extended discussion of the historical precedents on the separation of powers issue, see David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb – A Constitutional History, 121 Harv. L. Rev. 941 (2008). See Golove, A Just War Constitution, supra note 19. This understanding no longer conforms to contemporary constitutional doctrine, which generally acknowledges Congress’s power, as a matter of domestic law, to supersede international legal obligations. See William S. Dodge, Customary International Law, Congress, and the Courts: Origins of the Later-in-Time Rule, in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts 531 (Pieter H.F. Bekker, Rudolf Dolzer & Michael Waibel eds., 2010). See 78 U.S. 268, 305–06 (1871); see also id. at 314, 315–16 (Field, J., dissenting) (reaching the issue and affirming that Congress must observe the laws of war when exercising its war powers); Chapter 4, pp. 145–46. U.S. Const. art. I, § 8, cl. 11. See, e.g., Miller, 78 U.S. at 304–06 (ruling that Bill of Rights does not limit exercises of belligerent powers under laws of war). See Golove & Hulsebosch, supra note 22, at 999–1007.

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in prize proceedings. In fact, a remarkably large portion of the federal courts’ docket in the late eighteenth and nineteenth centuries was occupied with sometimes highly controversial prize cases.30 The early embrace of the judicial role is revealed in the Washington administration’s effort to enlist the Supreme Court in resolving the complex, and potentially incendiary, law of nations and treaty issues at the heart of the 1793 neutrality crisis.31 Although the Justices declined to provide the administration with the requested advisory opinion, they quickly sought to answer the very same questions in the course of prize litigation. Indeed, they adopted an aggressive view of admiralty jurisdiction precisely to enable the Court to play the active role that the administration had envisioned.32

III. The War on Terror Cases and the Just War Tradition With this sketch in mind, it is possible to appreciate how the war on terror cases are best seen as a judicial effort to uphold the main premises of the traditional constitutional order. Perhaps the starkest challenge to the traditional model derived from rapidly changing ideas about the role of international law in the domestic legal system. Reflecting realist premises widely embraced by the U.S. foreign policy establishment, leading legal scholars began arguing in the early 1970s that the President is constitutionally permitted to disregard customary international law,33 a view that was eventually affirmed in a few lower court decisions34 and embraced enthusiastically by at least some Presidents.35 By the mid-1990s, conservative legal scholars developed an even more ambitious attack on the domestic status of customary international law, arguing not only that it is not binding on the President but also that it is not incorporated into the domestic legal order.36 A similar trend emerged simultaneously, in both the scholarly literature37 and court decisions,38 with respect to treaties. Although the explanation for these developments is undoubtedly multifaceted, there is little doubt that these changes were facilitated by the intense skepticism, if not outright hostility, that conservative political leaders expressed toward international law after the Cold War. The Bush administration’s open refusal

30

31 32 33 34 35

36 37 38

See Prize Cases Decided in the United States Supreme Court: 1789–1918 (James Scott Brown ed., 1923) (in three volumes spanning more than 2,000 pages); Ariel N. Lavinbuk, Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme Court’s Docket, 114 Yale L.J. 855, 872–85 (2005). See generally Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (1997). See also Golove & Hulsebosch, supra note 22, at 1007, 1023–27. See Golove & Hulsebosch, supra note 22, at 1025–27; David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 St. Louis U. L.J. 145 (2008). See Louis Henkin, Foreign Affairs and the Constitution 214, 221–22 n.62 (1972). See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446, 1453–55 (11th Cir.), cert. denied, 479 U.S. 889 (1986). For the first Office of Legal Counsel opinion affirming a presidential power to disregard customary international law, see Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Enforcement Activities, 13 Op. O.L.C. 163 (1989). See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). See John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 Colum. L. Rev. 2218 (1999). See Medellin v. Texas, 552 U.S. 491 (2008) (radically revising doctrine of self-executing treaties and seeming to create a presumption against finding treaties self-executing). For trenchant criticism of Medellin, see Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008).


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after September 11 to recognize that the President is bound by the laws of war39 was thus only the dramatic culmination of a long process of downgrading and delegitimizing the role of international law in the United States. This downgrading opened a gaping hole in the traditional constitutional framework, which the Bush administration widened into a giant chasm when it further proclaimed that neither Congress nor the courts have any constitutional authority over the conduct of war and that the Executive would treat any congressional efforts to impose restrictions as unconstitutional intrusions into the sphere of exclusive executive war powers.40 These developments placed the Court on the horns of a dilemma. On the one hand, continuing to accord the laws of war the crucial role they played in the traditional model would have required a frontal challenge to the contemporary skepticism about international law. On the other hand, eliminating the laws of war would have made it virtually impossible to retain the essential features of the traditional model. The Court’s solution to this seemingly unsolvable quandary was remarkably adept. In the two cases dealing with substantive limits on executive conduct, Hamdi and Hamdan, the Court relied heavily on the laws of war,41 but carefully avoided any direct ruling that the President is constitutionally bound to observe them. Instead, it purported to find in existing statutes congressional commands that the Executive comply with the laws of war.42 These rulings went a considerable distance in upholding the traditional approach in two crucial respects. First, they were a powerful rejection of the executive branch’s claim to legally uncontrollable power over the conduct of war. If the laws of war were no longer applicable of their own force, Congress at least could make them so and fill the legal gap. Second, although the Court avoided ruling squarely that the President is constitutionally bound to observe the laws of war, its reasoning stopped just short of that conclusion. The statutes on which the Court relied did not explicitly incorporate the laws of war. In Hamdi, for example, the Court rested on Congress’s 2001 Authorization for Use of Military Force (AUMF) empowering the President “to use all necessary and appropriate force” against those responsible for the September 11 attacks.43 The Court’s interpretation of this language made the laws of war the measure of what force is “necessary and appropriate.” But its reasoning made sense only if the President was in any event constitutionally bound to comply with the laws of war. Could the Court have possibly meant to say that, without a statute “limiting” the President to “necessary and appropriate” measures, he would 39 40

41 42

43

See, e.g., Bybee Memorandum, supra note 15, at 11–15, 32–37. For the assertion of presidential authority to ignore statutes restricting the treatment of detainees, see Memorandum by Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, for Alberto R. Gonzales, Counsel to the President, Re: Standards for Conduct of Interrogations under 18 U.S.C. §§ 2340–2340A, Aug. 22, 2002, at 33–39. The Executive’s view about the role of the courts was evident in the arguments it made in litigation. See Rasul v. Bush, 542 U.S. 466, 475–76 (2004) (recounting Executive’s position denying jurisdiction with respect to noncitizens outside U.S. territory); Hamdi v. Rumsfeld, 542 U.S. 507, 525–28 (2004) (recounting Executive’s argument that the scope of judicial role even with respect to U.S. citizens is vanishingly modest). See Hamdi, 542 U.S. at 518–21 (plurality opinion); id. at 539, 548–51 (Souter, J., concurring in part, dissenting in part); Hamdan, 548 U.S. at 613, 625–34. See Hamdi, 542 U.S. at 518–21 (interpreting AUMF to require, in the context of detentions, executive compliance with the laws of war); Hamdan, 548 U.S. at 593–95, 613 (interpreting Uniform Code of Military Justice § 821 to require, in the context of military commissions, presidential compliance with the laws of war). Authorization for Use of Military Force Resolution, Pub. L. No. 107–40, 115 Stat. 224, 224 (2001).

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have been entitled to use “unnecessary” and “inappropriate” force? Or, to put the point differently, did the Court mean to suggest that the President’s powers would have been greater had he acted unilaterally, disclaiming the need for congressional collaboration in the decision to go to war?44 The insecure legal status of the laws of war also explains the Court’s invocation of constitutional rights on behalf of alleged enemy combatants in Hamdi and Boumediene. Under the traditional war powers framework, neither Hamdi nor Boumediene would have been granted rights under the Constitution. The President and Congress were instead bound to observe the laws of war. But if changes in constitutional doctrine have now eliminated any such obligation, an essential element of the traditional framework is missing. This development stands behind the Court’s extension of constitutional rights to alleged enemy combatants. Moreover, the due process rights that the Court granted Hamdi were essentially the same rights that he would have been entitled to under a reasonable interpretation of the laws of war,45 and in fact, the Court self-consciously drew much of its due process analysis from international law sources.46 For this reason, the Court might fairly be charged with having incorporated international law through the back door. Boumediene’s extension of constitutional rights to enemy aliens abroad was a more dramatic departure from the traditional approach than Hamdi, but it was also more modest in scope. The Court extended only one right – the right to judicial process – leaving open whether any other constitutional rights will be treated similarly. Moreover, if the Court ultimately does decide to extend other constitutional rights to Guantánamo detainees, it will likely, at a minimum, again look to international law for interpretive guidance.47 The aspects of the war on terror cases already considered reveal the Court’s efforts to preserve the central role of the laws of war in the constitutional war powers framework. At least equally controversial was the Court’s insistence – first as a matter of statutory interpretation (Rasul) and then as a matter of constitutional compulsion (Boumediene) – on a significant judicial role in overseeing the treatment of suspected enemy aliens held outside U.S. territory. In so ruling, the Court declined to follow its decision in Eisentrager, which had reached the opposite conclusion in the context of World War II.48 It is probably true, as Eisentrager asserted, that alien enemy prisoners of war detained abroad were, as an historical matter, denied access to the courts to challenge their detentions. However, 44

45

46 47

48

The same analysis applies to Hamdan. The Court purported to find in Uniform Code of Military Justice § 821 a requirement that military commissions convened by the President comply with the laws of war. However, § 821 refers only to the jurisdiction of military commissions “in respect of offenders or offenses that . . . by the law of war may be tried by such military commissions.” 10 U.S.C. § 821. In context, it is clear that Congress was merely preserving the President’s independent constitutional authority to convene military commissions to try offenses against the laws of war. Yet, as in Hamdi, it would be perverse to conclude that the President’s authority would have been broader in the absence of congressional authorization. See Hamdi, 542 U.S. at 533 (holding that due process requires notice of the factual basis for a classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision maker, but that hearsay evidence is admissible and a rebuttable presumption applies in favor of the government’s evidence). See id. at 538 (citing army regulations designed to implement the laws of war). Throughout American history, the Court has frequently looked to international law for guidance in interpreting the Constitution. See Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006); see also Chapters 1, 4, 8, and 12. See supra pp. 562–63.


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the same was generally true of enemy aliens detained inside the United States,49 although in the latter context the traditional practice was somewhat liberalized by World War II.50 Moreover, this policy of denying alien enemies access to national courts to challenge their detentions was widely accepted in all “civilized” nations; indeed, it was itself a principle of the laws of war.51 The underlying reasons for the rule were likely that disputes over the identities of combatants were relatively rare and that reciprocity was adequate, without the intervention of national courts, to ensure the release of noncombatants and the humane treatment of prisoners. Crucially, the courts traditionally did play an essential oversight role where genuine disputes over enemy status were likely. The central concern was over property, rather than liberty rights, and involved neutrals, who because of their individual actions – such as blockade running or carrying enemy goods or contraband – had taken on the character of enemies in law and thereby subjected their property to confiscation as prize of war. In these cases, the law of nations required that property seized on the high seas be brought in by the captor for adjudication before the prize courts of his own nation. Moreover, nations were obliged to maintain prize tribunals that applied the laws of war as their rules of decision.52 This insistence on judicial oversight undoubtedly reflected the fact that disputes over neutral/enemy status were extremely common and that neutral powers did not have the same capacity as the warring parties to inflict reprisals to ensure respect for their citizens’ rights.53 Moreover, in later years, prize courts extended their jurisdiction beyond claims brought by neutrals to at least some suits by admitted enemy nationals. Indeed, that was precisely what happened in The Paquete Habana.54 The Court found that customary international law had developed an exemption from seizure for certain fishing vessels owned and operated by enemy nationals. Whereas previously all enemy property at sea had been subject to confiscation, making disputes over the lawfulness of such seizures unlikely, the new rule made it likely that seizures of enemy fishing vessels would give rise to disputed factual and legal questions. Judicial jurisdiction followed.55 49

50 51

52 53

54 55

There are a small number of early American precedents involving habeas challenges by resident enemy aliens to detentions, but these involved civilians detained as enemy nationals under the Alien Enemies Act. See Gerald L. Neuman & Charles F. Hobson, John Marshall and the Enemy Alien: A Case Missing from the Canon, 9 Green Bag 2d 39 (2005). There are also a limited number of precedents in early English practice of prisoners of war seeking habeas relief. See, e.g., Sparenburgh v. Bannatyne, 126 Eng. Rep. 837 (1797) (exercising habeas jurisdiction in a petition by a prisoner of war held in England, although with the complicating circumstance that the petitioner was a neutral national who had taken a commission from a state at war with England). See Ex parte Quirin, 317 U.S. 1 (1942); In re Yamashita, 327 U.S. 1 (1946). See Johnson v. Eisentrager, 339 U.S. 763, 768, 773, 774, 776 (1950) (noting that the rule “is in keeping with the practices of the most enlightened of nations,” is “recognized throughout the civilized world,” is also “the doctrine and the practice of other states comprising our Western Civilization,” and from the beginning was “the rule of the common law and the law of nations”). See Henry Wheaton, Elements of International Law § 388 n.186, at 480–87 (Richard Henry Dana, Jr. ed., 1866). See id. § 388 n.186, at 480 (noting that it is “the fact that so large a proportion of [captures] are of neutral property charged as involved in violation of rights of war, or of property whose nationality as neutral or hostile is doubtful, [that] has led to the establishing of these tribunals”). The Paquete Habana, 175 U.S. 677 (1900). Even in detention cases, the courts exercised limited habeas review to determine whether the detainee was in fact an enemy national. Because enemy status was mostly limited to nationals of an enemy state, there were few cases where the issue was disputed, but where there were disputes, the courts sometimes intervened. See Vladeck, supra note 4, at 967–78 (describing cases). In Sparenburgh v. Bannatyne, 126

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It would be a mistake, moreover, to think that the prize courts dealt only with minor questions. Many of the most important disputes over the laws of war in the eighteenth and nineteenth centuries involved neutral rights and were adjudicated in prize courts.56 Indeed, the United States early in its history twice went to war – against France in the quasi-war of 1798–99 and against Great Britain in 1812 – to vindicate rights it claimed were protected by the law of neutrality. To be sure, the prize courts’ jurisdiction (which was in rem) generally extended only to seized property brought into the United States.57 The point, however, is that the property was brought into U.S. territory because the law compelled the captors to do so. Until the prize court had entered judgment, title remained in the original owner, a rule that effectively enforced the duty of captors to submit promptly to judicial oversight.58 This rule was the equivalent, in today’s terms, of a requirement that military officials who capture suspected alien terrorists bring them into the United States to adjudicate their enemy status, rendering concerns about extraterritoriality moot. Moreover, there is little doubt that the requirement of prize adjudication was highly inconvenient to military authorities, who were forced to expend considerable resources litigating against persons whom they believed were unlawfully aiding the enemy. Prize procedure was meant to mitigate the burden, but it could hardly eliminate the disruptive consequences of judicial review.59 In view of this history, it is debatable whether the Court’s decision in Rasul to carve out a judicial role in overseeing the legality of disputed detentions in Guantánamo Bay was inconsistent with the traditional constitutional framework. Indeed, the underlying logic of prize court jurisdiction seems to argue strongly in favor of Rasul’s approach. Even the Court’s more ambitious decision in Boumediene, which placed that judicial role on a constitutional footing, seems well within the prize court precedent. There is a reasonable argument that prize jurisdiction was constitutionally mandated and that Congress could

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57 58 59

Eng. Rep. 837 (1797), the English courts exercised habeas jurisdiction in a case brought by a prisoner of war who was a national of a neutral state – precisely the kind of case in which disputes were likely to occur. These cases underscore the point that the existence of judicial jurisdiction was closely tied to the perceived necessity for judicial determination of contested facts. See 1 Philip C. Jessup & Francis Deák, Neutrality: Its History, Economics and Law: The Origins (1935); 2 W. Alison Phillips & Arthur R. Reede, Neutrality: Its History, Economics and Law: The Napoleonic Period (1936); Edgar Turlington, Neutrality: Its History, Economics and Law: The World War Period (1936). For an account of major disputes resolved by the U.S. Supreme Court during the Civil War, see Stuart L. Bernath, Squall Across the Atlantic: American Civil War Prize Cases and Diplomacy (1970); David M. Golove, Leaving Customary International Law Where It Is: Goldsmith and Posner’s The Limits of International Law, 34 Ga. J. Int’l & Comp. L. 333, 351–76 (2006). There was dispute over how far the prize courts of the captor could exercise jurisdiction even when the seized vessel had not been brought in for adjudication. See Wheaton, supra note 52, § 388 n.186, at 486. See id. § 388 n.186, at 484–87. In his thoughtful response to this essay, Professor Michael Ramsey takes issue with my historical claim that the judiciary played an active role in developing and ensuring executive compliance with the laws of war. See Michael D. Ramsey, Judicial Imperialism and the War on Terror Cases, infra pp. 582–88. Although space does not permit an adequate response, I underscore just a few points. First, American courts played a large role in developing the elaborate body of procedural and substantive rules that comprised prize law and governed naval warfare. Second, although this jurisprudence at least to some extent reflected their perceptions of national interest, the courts exercised independent judgment, rather than taking instructions from the Executive, and executive officials were virtually compelled to follow the judiciary’s view of the applicable rules. Third, American courts routinely ordered restitution of prizes taken in violation of the law of nations.


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not have eliminated it consistent with Article III.60 Moreover, nothing in Boumediene precludes Congress from suspending habeas and thereby eliminating the jurisdiction that the Court found constitutionally grounded.61 Boumediene’s habeas jurisdiction, therefore, may be more amenable to Congress’s control than was the jurisdiction of the prize courts. Even putting the prize court precedent aside, there is a second reason why Rasul and Boumediene are best viewed as efforts to shape current doctrine to sustain the balance of the traditional constitutional framework in changed circumstances. The war on terror is a genuinely novel form of armed conflict, which has rendered many of the received doctrinal rules problematic. Were the Court to have ignored these differences, the result would have been to undermine, rather than to preserve, the American constitutional tradition. The most salient difference between the war on terror and traditional conflicts is that the war on terror is not a conflict between states in which opposing belligerents field hostile armies. In traditional interstate conflicts, enemy status was almost exclusively derived from nationality. Every citizen of an enemy nation was an enemy, although only those associated with the armed forces qualified as enemy combatants.62 As nationals of the opposing belligerent, enemies could ordinarily be readily identified, and most combatants were captured in circumstances that left little doubt about their status. In cases of ambiguity, moreover, they had powerful incentives to acknowledge their role to obtain prisoner-of-war status. Furthermore, combatants could be detained only while the conflict persisted.63 In virtue of their national allegiance, they were, for the period of the conflict, deemed enemies in law and presumed hostile. At the end of hostilities, however, the opposite presumption prevailed.64 Finally, combatants detained during hostilities were protected by a system of reciprocity. Both sides would hold prisoners of war, and any mistreatment by one side would be met with comparable mistreatment by the other. In this system, civilian courts played little or no role. Instead nations relied on the duty of government and military officials to uphold the laws of war, the reciprocal pressures for compliance arising between warring nations, and the system of military justice administered by military lawyers and judges applying the laws of war. The war on terror differs fundamentally from traditional interstate conflicts with respect to almost all these features. There are no battlefields in the traditional sense and no organized armed forces on the terrorist side. There are no enemy nations and, consequently, no enemy nationals. That means that the only “enemies” are persons who have actually engaged in or supported hostile acts or who have the intention of so doing. A central dilemma is therefore determining the identity of actual “enemies.” Terrorists generally conceal their identities and, when captured, frequently deny having terrorist affiliations, in part because they are not entitled to prisoner-of-war status and in part 60

61 62 63 64

Justice Story suggested this argument in Martin v. Hunter’s Lessee, 14 U.S. 304, 333–35, 337 (1816); see also 3 Joseph Story, Commentaries on the Constitution of the United States § 1666, at 533 & n.3 (1833) (noting that Kent and Rawle took an even broader view). The Suspension Clause allows Congress to suspend the writ “when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. See Johnson v. Eisentrager, 339 U.S. 763, 772 (1950). See Geneva Convention (III), supra note 16, art. 118. For Justice Jackson’s discussion in Eisentrager of the foundational role played by the duty of allegiance in the law of war, see 339 U.S. at 772–73, 787–88.

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because their hostile acts amount to crimes. Moreover, because the war on terror is not waged against a state, there are no obvious criteria for ascertaining the end of the conflict, and there are reasonable grounds for thinking that it could persist for decades. This means that detainees, whose status is difficult to determine in the first place, could potentially be subject to long-term indefinite detention. Complicating matters further, the duty of allegiance as traditionally understood plays no role. Individuals with hostile intentions may cease being hostile before the war is concluded or may continue to be hostile even after bin Laden has “surrendered.”65 Finally, the system of reciprocity that exists between warring states has little or no force between states and terrorist groups. Consequently, direct reciprocity – the most compelling engine of compliance in interstate wars – does not accord states strong incentives to avoid the mistreatment of detainees. For all these reasons, the rationales that supported a limited judicial role in overseeing detentions in traditional interstate wars support the opposite result in the war on terror. Moreover, the fact that after September 11 the executive branch openly renounced any obligation to observe the laws of war – a position confirmed by its actual conduct in the field – reinforced the conclusion that there was no longer a reliable system to ensure that the government and military would proceed as they generally had in the past.66 A final aspect of the war on terror cases is the Hamdan Court’s ruling that Common Article 3 of the 1949 Geneva Conventions is judicially enforceable and that it applies to the war on terror.67 With respect to the former, the Court declined to apply yet another ruling in Eisentrager, which had found that the 1929 Geneva Conventions were not judicially enforceable.68 With respect to the latter, it not only eschewed its well-known practice of deferring to executive branch treaty interpretations69 but also dramatically undermined the legal basis for some of the executive branch’s most sensitive war on terror policies. These rulings were part and parcel of the Court’s larger effort to preserve the fundamental tenets of the traditional war powers framework. The Court’s evident purpose was to maintain an independent role for the judiciary in defining and enforcing the minimum requirements of the laws of war applicable to the war on terror. Given the Executive’s announcement that it did not consider itself bound by international law restraints, the ruling on judicial enforceability was a necessary step to ensure that the laws of war could 65

66

67 68 69

Considerations of these kinds led Justice O’Connor in Hamdi to caution: We understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004). I agree with Professor Martin Flaherty’s important point that our constitutional criminal law tradition is also, or at least should be, relevant to the conflict with al Qaeda. See Martin S. Flaherty, Constitutional Resolve in a World Changed Utterly, infra pp. 579–80. My aim here has been to give an internal account of the Court’s decisions, which characterize the current conflict as a war. Like Professor Flaherty, I am skeptical of this categorization. I also agree that, despite their rhetoric, the Court’s decisions can usefully be seen as efforts to incorporate both law of war and criminal law elements. See Hamdan v. Rumsfeld, 548 U.S. 557, 629–31 (2006). See Eisentrager, 339 U.S. at 789 n.14; supra p. 563. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184–185 (1982); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).


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play their historical role. On its own, however, it was not sufficient. As we have seen, the laws of war were not developed with terrorism in mind, and their principles do not easily fit the war on terror. The executive branch exploited this difficulty to argue that the laws of war are entirely permissive when it comes to terrorist suspects. In particular, it vigorously argued that even Common Article 3 – which defines a few fundamental humanitarian limits that must be observed when the more stringent requirements of the Conventions are otherwise inapplicable – does not apply to the war on terror.70 The Court was thus confronted with an executive branch that was unwilling to accept either that it was bound by the laws of war or that the principles of the laws of war imposed any limits on its discretion. If the laws of war were to play their traditional role and constrain executive discretion within the bounds of civilized war, the Court simply could not defer to the executive branch’s view. Moreover, although the Court’s recent practice has tended to assume a more deferential posture, it is not true that the Court historically played a subordinate role in interpreting international law in general and the laws of war in particular.71 Indeed, judicial independence in interpreting international law was one of the main purposes for which the federal judiciary was created. Such independence was an instrument not only for enforcing compliance with international obligations but also for enabling the government to offer foreign states plausible assurances that its legal positions would be subjected to impartial scrutiny.72 Indeed, the value of judicial independence was at least one, if not the principal, motivation for the Washington administration’s request for an advisory opinion during the great neutrality crisis engendered by the wars of the French Revolution. The delicate law of nations questions posed by the Cabinet went directly to the core of the most urgent foreign policy issue facing the nation. It was precisely for this reason that the Cabinet sought the Court’s advice, recognizing that the administration’s policies were more likely to be accepted as legitimate by the belligerent powers if they were submitted to judicial testing.73 Even more importantly, the most plausible explanation for the Justices’ refusal to give their advice was to preserve the Court’s appearance of independence from executive influence. Concerned that offering advice outside the judicial process would undermine that appearance in the eyes of foreign powers, the Justices preferred to limit themselves to issuing legal rulings in the regular course of judicial proceedings.74 Throughout American history, the Court has been fully cognizant of the international ramifications of its decisions and has directed its opinions to both international and domestic audiences. Its international law cases often included learned discussions of the law of nations and displayed a thorough knowledge of European authorities. To a remarkable extent, for example, the Court’s prize cases cited, discussed, and relied on the celebrated prize decisions of the British Admiralty courts authored by Sir William Scott.75 Indeed, the Court continued to rely extensively on Scott’s prize decisions even 70 71

72 73 74 75

See supra p. 563. See David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. Ann. Surv. Am. L. 497 (2007) (demonstrating that the Court’s non-deferential approach in Hamdan is consistent with early Supreme Court precedents). See Golove & Hulsebosch, supra note 22, at 995–1007. See id. at 1007, 1023–27. See id. See generally Henry J. Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty, 1798–1828 (1987).

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during the War of 1812, when purported British violations of U.S. neutral rights – which Scott had consistently upheld in the British prize courts – were the casus belli of the conflict. This practice clearly reflected the Court’s understanding that the value of its prize decisions depended largely on their ability to convince foreign governments and international opinion that they resulted from an independent process of judicial reasoning, rather than a mere reflection of executive policy and U.S. interest. Nor is it the case that the Court historically refrained from playing an active role in the development of the laws of war. Quite the contrary. From the neutrality disputes of the early Republic through the Civil War, the Spanish-American War, and finally World War II, the Court frequently exercised its jurisdiction to adapt the doctrines of the laws of war to the ever-changing nature of war.76 I do not mean to suggest that the Court was inattentive to U.S. interests. At times, indeed, the Court’s decisions were highly controversial abroad. In these respects, the war on terror cases – and Hamdan’s ruling on Common Article 3 in particular – are no exception. They were efforts to adapt the laws of war to radical changes in the nature of armed conflict. Moreover, they were clearly directed to a foreign audience deeply concerned about the direction of U.S. policy and its apparent lawlessness. And finally, they were fully attentive to the Court’s perception of U.S. interests in the development of a body of principles to define the limits of civilized warfare in the context of international terrorism. To be sure, the ruling in Hamdan was powerful medicine, but judicial independence requires that there will be cases where the judiciary reaches a conclusion strikingly different from the one endorsed by the political branches. We have historically been, and will probably remain, the better for it.77

76

77

See, e.g., In re Yamashita, 327 U.S. 1 (1946); The Paquete Habana, 175 U.S. 677 (1900); The Peterhoff, 72 U.S. 28 (1867); The Nereide, 13 U.S. 388 (1815); Brown v. United States, 12 U.S. 110 (1814). For discussion of the Supreme Court’s Civil War prize jurisprudence and the diplomatic difficulties that it engendered, see Bernath, supra note 56, at 47–98, 168. In arguing that the war on terror cases departed radically from tradition, I believe Professor Ramsey overestimates the impact of what the Court has actually done. See Ramsey, supra note 59. Without underestimating the importance of reintroducing the rule of law into the war on terror, the fact remains that the Court has left the political branches considerable discretion in developing the applicable legal rules. Moreover, it has left most questions governed by the laws of war entirely untouched. It would be a serious error to imagine that the Court has assumed command of the war on terror.

Response Essay Constitutional Resolve in a World Changed Utterly Martin S. Flaherty∗

As Professor David Golove notes, it may or may not be too soon to write about the Supreme Court’s “war on terror” cases as history.1 Journalism may be history’s “first rough draft,”2 but Golove shows why respected scholars should get in on the act early. Typical of his work, although still sadly rare in legal scholarship,3 his essay reflects substantial research, reminding us of the nation’s original and longstanding commitment to the laws of war and to the role of separation of powers in ensuring their application. Likewise typical, Golove puts the research he sets forth to innovative and provocative use, arguing that while the Supreme Court’s recent terrorism jurisprudence may depart from settled precedent, it does so more faithfully to serve the Founding commitments. Professor Golove’s approach reflects an irony worth noting at the outset, not least because it has characterized many accounts of the Court’s terrorism jurisprudence. This irony begins with the now commonplace observation that in fundamental ways the 9/11 attacks represent a distinct break with past experience.4 Golove acknowledges that the attack really did confront the United States with a new and terrible phenomenon.5 The scale of the threat made it too big for a criminal law framework. As Professor Bruce Ackerman has emphasized, where previously terrorists could at worst kill by the dozen, now thanks to technology, they threaten destruction on a scale once reserved for war.6 Yet for all the rhetoric to the contrary,7 neither can it be considered war in any conventional sense. Most of the world addresses the modern terrorist threat though criminal law, ∗

1 2 3 4

5 6 7

Leitner Family Professor of International Human Rights Law, Fordham Law School; Co-Founding Director, Leitner Center for International Law and Justice; Visiting Professor, Woodrow Wilson School of Public and International Affairs, Princeton University. David Golove, The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition, supra p. 561. Helen Thomas, Front Row at the White House: My Life and Times 383 (2000) (quoting Ben Bradlee). Martin S. Flaherty, History “Lite” in Modern Constitutionalism, 95 Colum. L. Rev. 523 (1995). See, e.g., James E. Baker, In the Common Defense: National Security Law for Perilous Times (2007) (arguing that jihadist terrorism confronts the United States with a unique and unprecedented threat). Golove, supra note 1, p. 571. Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, 13–15 (2006). Kenneth R. Bazinet, A Fight vs. Evil, Bush and Cabinet Tell U.S., N.Y. Daily News (Sept. 17, 2001) (quoting George W. Bush as saying “this crusade – this war on terrorism – is going to take a while”).

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although generally an “emergency” version with substantially reduced criminal process protections.8 The U.S. Executive’s responses to terrorism illustrate the dilemma. First and famously the Bush administration argued for the application of a war model to justify initiatives such as Guantánamo, yet even it prosecuted certain terrorist suspects in federal court. With perhaps less of a shift in emphasis than expected, the Obama administration has continued on each track.9 Ordinarily, it might seem sensible to confront a radically new challenge from a fresh perspective. Yet despite this sharp break with the past, Professor Golove, as well as the Justices he describes, seek their principal guidance from history, often stretching back to the Founding. Among other things, this approach reflects the distinctive and almost obsessively firm grip that the past holds on American constitutional culture. For better or worse, the dominant view on both the left and the right is that the Court should not lightly abandon entrenched constitutional values, even in the face of great change. The terrorism cases have confirmed the common observation that “we are all originalists now”10 – whether Justice John Paul Stevens11 or Justice Clarence Thomas,12 whether Professor David Golove13 or Professor John Yoo.14 Whether Golove’s analysis succeeds or fails therefore depends to a great extent on the strength of the background history through which he makes sense of recent events. From this standpoint Golove, drawing on his substantial body of earlier work, does a great service in rediscovering neglected aspects of the constitutional values at stake. His essay reminds us of the nation’s longstanding commitment to the laws of war as a guide and constraint on all three branches, the judiciary included. In deference to the grip of the past on modern thinking, he seeks to translate these historic commitments to the post-9/11 world, but in a typically sophisticated way. That said, Professor Golove does make one uncharacteristic yet important misstep. The problem arises not with his history but with his analysis of the Court’s modern doctrine. Golove maintains that the Court rejected or sidestepped settled precedent to achieve a more genuine fidelity to our constitutional origins. Yet in making this argument, he ignores his own insight that the “war on terror” is sufficiently novel that it does not fit within precedents designed to deal with either crime or war. The Supreme Court did not depart from settled doctrine in the service of enduring truths. Rather, it applied enduring truths to a fundamentally new situation. For this reason, one can construct a stronger defense of the Court than even Golove acknowledges. 8

9 10 11 12 13 14

See Martin S. Flaherty, Human Rights Violations Against Defense Lawyers, 7 Harv. Hum. Rts. J. 87, 94–96 (1994); see also Nicole Fritz & Martin S. Flaherty, Unjust Order: Malaysia’s Internal Security Act (2003); Martin S. Flaherty, Human Rights and Legal Defense in Northern Ireland (1993). Richard B. Zabel & James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, 2009 Update and Recent Developments 5–11 (2009). See, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703, 704 (2009). See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 595–609 (2006) (providing a history of military commissions and of the charges that may be brought before them). See, e.g., id. at 678–98 (Thomas, J., dissenting) (providing a counter-history of military commissions and of the charges that may be brought before them). Golove, supra note 1. See John Yoo, Crisis and Command: A History of Executive Power from George Washington to George W. Bush (2010); John Yoo, War by Other Means: An Insider’s Account of the War on Terror (2006).

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I. Translating for a New World As in constitutional law, reliance on history in responding to terrorism may or may not be simply so much cover for judgments based on modern preferences. Yet if the past really does provide applicable doctrine, it follows that the rules derived can only be as strong as the historical account.15 This stricture, which can be surprisingly controversial,16 is one reason for the present volume. So how strong is Golove’s account? Not surprisingly, the answer is strong indeed. Golove has devoted much of his career to scholarship that is exceptionally thorough in its research and analysis. His work has done much to extend the grip of legal history to modern foreign affairs law.17 Golove here summarizes his efforts to restore to our constitutional consciousness America’s “Just War constitutional tradition.”18 One way to evaluate a historical interpretation is to survey the depth, breadth, and accuracy of the various factual assertions put forward.19 That cannot be done where, as in this case, a brief overview rests on assertions made in other work. Yet perhaps more important is the extent to which his account comports with widely accepted historical scholarship on point.20 Consider first Golove’s assertion that the laws of war afforded both an accepted basis for and limit on presidential power. Not only does this claim reflect current historical scholarship but also much of that scholarship is on offer in this volume. First and most generally, the United States was established during a period when international law was very influential among intellectuals, statesmen, politicians, lawyers, activists, and polemicists. Second, the law of nations, including the laws of war, carried special weight in the United States, where Grotius, Pufendorf, and Vattel were standard reading among revolutionaries and constitution-makers.21 Vattel, whose conception of the law of nations tended to benefit small republics, found a particularly receptive audience among Americans.22 Finally, Golove is on firm scholarly ground in arguing that the law of nations constrained the Executive once the country was engaged in armed conflict.23 A good deal of this foundation was actually laid by Golove’s own work,24 work that clearly meets the other criterion of ample research. 15 16 17

18 19 20 21 22 23

24

Flaherty, supra note 3, at 551. See Cass R. Sunstein, The Idea of a Useable Past, 95 Colum. L. Rev. 601 (1995). See, e.g., David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000); David Golove, From Versailles to San Francisco: The Revolutionary Transformation of the War Powers, 70 U. Colo. L. Rev. 1491 (1999). Golove, supra note 1, p. 561. Flaherty, supra note 3, at 550–56. Id. at 554–55. Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” 99 Colum. L. Rev. 2095, 2105 (1999). Thomas H. Lee, Making Sense of the Eleventh Amendment: International Law and State Sovereignty, 96 Nw. U. L. Rev. 1027, 1061–67 (2002). See Michael D. Ramsey, Torturing Executive Power, 93 Geo. L.J. 1213, 1245–49 (2005); see also Alexander Hamilton, Pacificus No. 1 (June 29, 1793), in 15 The Papers of Alexander Hamilton 40, 43 (Harold C. Syrett ed., 1969) (arguing that the laws of war were among the laws that the President must take care to be faithfully executed); James Madison, Helvidius Number 2 (Aug. 31, 1793), in 15 The Papers of James Madison 80, 86 (Thomas A. Mason, Robert A. Rutland & Jeanne K. Sisson eds., 1985) (same). See David Golove, The Bush Administration’s “War on Terrorism” in the Supreme Court, 3 Int’l J. Const. L. 128 (2005); David Golove, Military Tribunals, International Law, and the Constitution: A FranckianMadisonian Approach, 35 N.Y.U. J. Int’l L. & Pol. 363 (2003).

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Much the same assessment applies to Golove’s claim that the judiciary traditionally played a supervisory role to ensure that the nation adhered to the laws of war. First, the noted authority of international law at the Founding provides the necessary foundation for the type of enforcement he asserts.25 Second and more specifically, recent scholarship has recaptured the far more substantial foreign affairs role that the Founding generation accorded the judiciary.26 Yet there is a problem. The historic commitments that Golove recaptures cannot simply be applied, but first must overcome doctrine of more recent vintage. “Critics are certainly correct,” Golove writes, “that the Court rejected the application of a number of long-settled doctrines and even the holdings of some of its landmark war powers cases. Indeed, some of its rulings were breathtaking in their willingness to break new doctrinal ground.”27 The problem occurs again and again. With Hamdi,28 for example, “the Court held, for the first time in U.S. history, that an alleged enemy combatant was entitled to some protections of the Bill of Rights.”29 Boumediene30 went even further, extending constitutional protection to aliens extraterritorially for the first time in our history.31 The Court further broke with precedent by insisting on a supervisory role over the Executive in both Boumediene and Rasul.32 Finally, Hamdan,33 in rejecting the Executive’s idiosyncratic interpretation of Common Article 3 of the Geneva Conventions, departed from a longstanding tradition of judicial deference to presidential treaty interpretation.34 In all these ways, Golove argues, the Court’s terror cases marked a sharp departure from settled doctrine regarding the conduct of armed conflict. Having set out the problem, Golove presents a solution. As he puts it, “[t]he measure of the Court’s consistency to constitutional tradition cannot be whether it woodenly applied past doctrine to the war on terror.”35 Rather, true adherence to our constitutional values depends on “whether, in the face of profound changes in the nature of warfare, in background political/jurisprudential ideas about international law, and in the executive branch’s willingness to acknowledge traditional limits on its powers, the Court developed doctrines capable of preserving the fundamental tenets of the traditional constitutional framework.”36 Golove, in other words, proposes to apply what Professor Lawrence Lessig 25 26 27 28 29 30 31 32 33 34

35 36

See supra p. 577. See David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 St. Louis U. L.J. 145 (2008); Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 831, 845–66 (2006). Golove, supra note 1, pp. 561–62. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Golove, supra note 1, p. 562. Boumediene v. Bush, 553 U.S. 723 (2008). Golove, supra note 1, p. 562. Rasul v. Bush, 542 U.S. 466 (2004); see Golove, supra note 1, pp. 562–63. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Golove, supra note 1, p. 563. Here he overstates. A close look at this tradition reveals that such deference was and remains more apparent than real. See Martin S. Flaherty, Globalization and Executive Power (unpublished manuscript). But see David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. Colo. L. Rev. 1439 (1999) (arguing that the lower federal courts do effectively defer to the Executive concerning treaty-based claims). In this volume, see Chapter 2, pp. 83–85; Chapter 6, pp. 217–18; Chapter 10, pp. 335–38. Golove, supra note 1, pp. 563–64. Id.


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terms “fidelity in translation.”37 Under this approach, constitutional interpretation entails identifying We the People’s initial commitments and holding them constant in light of sometimes radically changed circumstances. As Golove suggests, the twist comes in recognizing that mechanical application of a doctrine to a new situation, much like literal translation of a word to a new language, can undermine rather than further the original meaning. The Court’s terrorism cases translated in two ways. First, they preserved the applicability of the laws of war, even though these laws could no longer be applied in a straightforward fashion. Ironically, the problem here stemmed less from terrorism’s differences from traditional war than from the erosion of international law within American legal culture. To translate our historic commitment to the laws of war in this new context could not mean ignoring those laws or allowing the Executive to follow them as it saw fit. Rather, the terror cases carried over the nation’s historic commitment to the laws of war by finding that Congress had incorporated them through the Uniform Code of Military Justice (UCMJ) and the Authorization for Use of Military Force (AUMF) and by reading the substance of these rules into the Fifth Amendment.38 The second translation preserved strong judicial oversight during armed conflict. In this instance Golove, again rightly, reconstructs the now largely forgotten role that courts played when either the status of combatants or their property was likely to be at issue. This role was reflected in the adjudication of prizes captured on the high seas, a central aspect of eighteenth-century warfare. The Court translated this historic role in Hamdi by rejecting Eisentrager’s narrow reading of statutory habeas corpus review and, again in Boumediene, by invalidating Congress’s attempt to prevent the courts from reviewing whether detainees were in fact enemy combatants.39

II. The Need for a Double Translation Golove’s translation offers an elegant, but ultimately incomplete, solution. Its main weakness is that there is less of a problem to solve than he fears. Time after time Golove stresses the Court’s departures from precedent in language that comes close to echoing Professor John Yoo.40 “[T]he Court,” he asserts, “did push constitutional doctrine in substantially new directions,”41 and “some of its rulings were breathtaking in their willingness to break new doctrinal ground.”42 Yet the difficulty with wartime precedents is not simply that they cannot be mechanically applied to a situation that is not a traditional war. A deeper challenge is that an equally plausible argument can be made for applying criminal law. Golove does not fully adopt his own insight that terrorism does not fit neatly into either a war or criminal law model, for that insight suggests the need for a double translation. True, wartime precedents cannot be mechanically applied 37

38 39 40 41 42

See Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993). See generally, Symposium, Fidelity in Constitutional Theory, 65 Fordham L. Rev. 1247 (1997) (discussing various broad approaches to the problem of fidelity to the Constitution’s past and traditions). Golove, supra note 1, pp. 567–68. Id., pp. 568–72. See sources cited supra note 14. Golove, supra note 1, p. 563. Id., pp. 561–62.

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in a conflict in which combatants are hard to identify, that does not principally involve sovereign states, and that may never end. Yet so, too, basic rights of criminal due process must be both adapted and expanded. Criminal law is the other part of the tale that needs telling. To preserve constitutional rights usually applied in criminal proceedings, the Court departed from precedent to extend rights extraterritorially, to guarantee rights in new situations, and again to insist on the need for a judicial role in overseeing activities that have much in common with criminal procedures. On this view, Rasul and Boumediene’s expansion of habeas, a right typically invoked to challenge breakdowns in the criminal justice system, beyond U.S. territory is perfectly proper.43 If the Executive must pursue and detain criminal suspects abroad to meet the threat, habeas review will follow. Yet the rights enjoyed by terrorism suspects are not necessarily identical to those of ordinary criminals. Hamdi holds that suspected terrorists are entitled to the base minimum due process rights of notice and a hearing, with at some point a right to counsel.44 Yet it also holds that due process permits the admission of hearsay and a rebuttable presumption in favor of the government’s evidence.45 While, as Golove notes, the Court has previously restricted certain constitutional rights to U.S. soil, it has held others to apply abroad, especially when they related to criminal process.46 Finally, the three cases insist on a robust judicial role, a role that perhaps appears less surprising to the extent that modern terrorism has not lost all the features of criminal activity even as its destructive capacity approaches military force.

III. Conclusion In this early draft of history, David Golove provides a highly sophisticated understanding of how the Supreme Court’s recent terrorism holdings keep faith with the past even as they break new ground. Yet by more fully exploring his insight about modern terrorism’s novel, hybrid character, his account can be more sophisticated still. Taken together, the Court’s recent cases clearly preserve the historical values of the laws of war. But they also adapt and expand rights typically associated with criminal justice. That the Justices do both reflects the simple reality that modern terrorism is too individualized to count as traditional war, yet too dangerous to qualify as ordinary crime. This more complete understanding, even as a sketch, suggests further insights. For one thing, history serves less as a constraint than as a source for the Justices to adapt to an unprecedented situation. For another, the dual nature of terrorism means that the sources on which the Court can draw are properly broad. Exactly how the fundamental values of criminal law and the laws of war should be pieced together makes for the proverbial devil in the details. Nonetheless, doing this legitimately first requires an understanding that what the Court has been – and should be – doing is translating not just one body of law, but two, and combining them to face a terribly novel challenge. As a final note, however, even this understanding fails to account for one striking feature of the terrorism cases to date. Previously, the two relevant sides of the law were more than 43 44 45 46

See Boumediene v. Bush, 553 U.S. 723 (2008); Rasul v. Bush, 542 U.S. 466 (2004). Hamdi v. Rumsfeld, 542 U.S. 507, 533, 539 (2004). Id. at 533–34. Reid v. Covert, 354 U.S. 1 (1957) (applying the Fifth Amendment right to a jury trial extraterritorially).


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symbolic. Robust constitutional criminal process led to concrete results ranging from new trials to the actual release of the wrongly incarcerated. Likewise, the laws of war had practical consequences, including the invalidation of wrongful prize captures and the humane treatment of prisoners. But to date, the Supreme Court’s war on terror rulings have been largely symbolic. To take one example, the federal judiciary could not bring itself in the end to order relief for a small group of Uighurs, detained at Guantánamo for nearly a decade, whom the government years ago admitted were in no way involved in terrorist activity.47 This suggests that perhaps the most problematic break with the past is the present disjunction between rights and remedies. That, however, would be a story for a subsequent volume.

47

See Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 1880 (2010).

Response Essay Judicial Imperialism and the War on Terror Cases Michael D. Ramsey∗

Professor David Golove, in his usual insightful style, invites us to find in the history of international law in the Supreme Court “an active role for the judiciary in the development of the law of war and in ensuring executive compliance with its obligations.”1 That active role, he continues, supports the early-twenty-first-century Court’s interventions in the war on terror, even though the decisions by which the Court intervened do not align comfortably with specific prior precedents and practices.2 I cannot see in the Court’s history what Professor Golove sees. True, American history in general, and some of the Court’s cases, include broad gestures toward the importance of the laws of war. And true also, cases applying the laws of war – particularly adjudicating prize controversies – are common in the Court’s early history. But I see the laws of war most often invoked interstitially or to expand rather than constrain war-fighting capacity. In few if any historical instances did the Court use the laws of war to second-guess the political branches’ core war-fighting strategies. Thus, I would put the point somewhat differently. Traditionally, developing warfighting strategy has been the responsibility of the executive (and to some extent the legislative) branch. To a greater or lesser extent (depending on the period one examines) the executive and legislative branches were expected to pursue that responsibility subject to their understandings of the laws of war, and – at least at a rhetorical level – they generally did so. The Court played a supporting role, which sometimes involved enforcing laws of war rules against executive branch actors consistent with (or at least not contrary to) broader understandings developed by the President and Congress. But the Court did not undertake an intrusive supervisory role nor develop independent views of the laws of war to challenge executive or legislative determinations at a strategic level. In sum, the United States may have what Professor Golove calls a “Just War constitutional tradition.” But the executive branch, not the judiciary, has exercised primary responsibility for implementing it. In this view, the war on terror cases mark a departure not merely from the Court’s particular precedents and practices (as Professor Golove ∗ 1 2

Professor of Law, University of San Diego School of Law. David Golove, The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition, supra p. 565. Id., pp. 566–74.

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illustrates) but also from the Court’s previously limited role in overseeing war-fighting strategy.

I. The Significance of the War on Terror Cases I begin by considering why the Court’s quartet of war on terror cases3 may appear anomalous. It is not because the Court restrained the political branches in wartime. The Court historically has enforced constitutional limits on wartime governments to protect domestic rights within the United States.4 There is, moreover, broad modern consensus that it sometimes failed to protect domestic wartime rights when it should have.5 Americans do not think war suspends constitutional rights or judicial review within the domestic legal system. Rather, the war on terror cases may seem troubling because they extended judicially enforceable rights to foreign enemy combatants overseas, against the wishes of the political branches and contrary to core aspects of the nation’s war-fighting strategy. In this sense the 2004 decision Hamdi v. Rumsfeld was not especially problematic. Granting Hamdi, a U.S. citizen confined in the United States, some limited right to a nonjudicial hearing under the Due Process Clause broadly aligned with the idea that constitutional limitations persist during wartime and posed no fundamental challenge to the nation’s war-fighting strategy.6 In contrast, Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush more seriously challenged both the nation’s war-fighting strategy and traditional conceptions of the judicial role. By insisting that foreign nationals detained at Guantánamo had rights not merely to military hearings but to more intrusive judicial hearings, Rasul and Boumediene appeared to demand fundamental changes in U.S. detention policy.7 By finding, in Hamdan, that the Geneva Conventions’ Common Article 3 applied to terror suspects (despite a contrary executive branch interpretation), the Court not only overturned the President’s military commissions policy but also implicitly imposed Common Article 3’s standards for detainee treatment (including its ban on coercive interrogation) on an unwilling President. Moreover, as Professor Golove points out, the cases asserted this bold judicial role in tension with or outright derogation of prior practice and precedent.

II. The Court and the Laws of War Professor Golove nonetheless finds the war on terror decisions “faithful to the spirit of the constitutional framework for war that has persisted throughout our constitutional history.” He does so because he discerns in the Court’s historical application of international 3 4 5 6

7

Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004). E.g., Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952); Ex parte Milligan, 71 U.S. 2 (1866); Brown v. United States, 12 U.S. 110 (1814). E.g., Korematsu v. United States, 323 U.S. 214 (1944); United States v. Schenk, 249 U.S. 47 (1919). Professor Golove reads Hamdi to imply as a general matter that detentions would be legal under U.S. law only if legal under the laws of war. Golove, supra note 1, p. 567. I would not read Hamdi so broadly, but if that is what it implied, it is subject to some of the same criticism as Boumediene and Hamdan. Although nominally about procedures, Boumediene forced substantive changes in strategy by altering the amount and quality of evidence needed to keep terrorism suspects in detention.

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law what he calls a “Just War tradition”: that “warfare is appropriately subject to legal constraint and that the governing rules – the laws of war – ought to be consonant with the demands of civilized conduct.”8 While I do not dispute that some just war tradition exists, I find little evidence that it supports judicial oversight of the President’s core war-fighting strategies in the manner of Hamdan and Boumediene. Professor Golove’s argument rests on three central propositions: that traditionally the President had a constitutional duty to uphold the international laws of war, that Congress had a similar duty, and that “the traditional constitutional framework embraced an active role for the judiciary in the development of the law of war and in ensuring executive compliance with its obligations.”9 I largely agree with the first proposition, at least as a statement of the Constitution’s original meaning.10 More importantly, I agree that Presidents have long been understood (and have understood themselves) to have a responsibility (constitutional or not) to implement the laws of war. As to the second, I think there is little historical (or textual) evidence of a constitutional duty of Congress to uphold the laws of war, and early Court decisions acknowledged Congress’s constitutional ability to violate international law.11 But Congress (like the President) was generally understood to have a duty to observe the laws of war,12 even if that duty was not constitutionally mandated or judicially enforceable. Professor Golove’s third proposition is crucial for Hamdan and Boumediene and is the one I find most difficult to sustain. In this volume’s previous chapters, I see little evidence that the laws of war provided any meaningful judicial check on core executive or legislative war-fighting strategies at any point in U.S. history. Rather, the nation’s responsibilities under the laws of war, although broadly acknowledged during most of our history, have generally been implemented by the President (and to some extent by Congress). The Court has played a supporting role, adjudicating law of war claims in support of presidential policy or absent conflict with core presidential policy, but the Court traditionally did not second-guess war-fighting strategy. Although this essay’s brief nature does not allow full consideration, a quick survey of the Court’s wartime jurisprudence confirms this proposition. In the mid-1790s neutrality and the subsequent “quasi-war” with France, the Court encountered many law of war cases (mostly prize disputes).13 But these decisions generally supported presidential policies14 or implemented aspects of prize law that did not interfere with them. 8 9 10

11

12 13 14

Golove, supra note 1, p. 564. Id., p. 565. The Take Care Clause seems to encompass a presidential duty to obey treaties, given treaties’ status as supreme law and the Founders’ understanding of treaties as equivalent to statutes in domestic law. See Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 155–73 (2007). Customary international law poses a closer question. Undoubtedly the Founding generation thought that the President had an international obligation to respect the law of nations; a constitutional duty to do so rests on a difficult extrapolation from the take-care clause and relatively thin post-ratification practice and commentary. See id. at 363–76. E.g., Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804); The Marianna Flora, 24 U.S. 1, 39–40 (1826). Justice Field’s dissent in Miller v. United States, 78 U.S. 268 (1871), relied on by Professor Golove, contains no suggestion that it could command a majority. For further discussion, see William S. Dodge, Customary International Law, Congress, and the Courts: Origins of the Later-in-Time Rule, in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts 531 (Pieter H.F. Bekker, Rudolf Dolzer & Michael Waibel eds., 2010). E.g., Bas v. Tingy, 4 U.S. 37 (1800). See Chapter 1, pp. 34–35. E.g., Talbot v. Jansen, 3 U.S. 133 (1795); Glass v. The Sloop Betsey, 3 U.S. 6 (1794).


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The executive branch’s three prominent losses in quasi-war cases either did not involve international law15 or did not involve challenges to core war-fighting strategy.16 Likewise the voluminous War of 1812 prize cases principally implemented executive and legislative policy,17 and none overturned presidential war-fighting strategy on law of war grounds. The executive branch’s most significant War of 1812 loss was Brown v. United States,18 which invalidated a seizure of enemy property within the United States. But Brown turned on the constitutional allocation of war power between the President and Congress, not a direct application of the laws of war; it involved an isolated domestic seizure far removed from the battlefield; and it is not clear that the President even directed the seizure, much less that the seizure formed an important part of presidential strategy.19 In sum, although the early Court played an active role in foreign affairs cases, none of its decisions interfered with war-fighting strategy on law of war grounds. The cases most plausibly invoked for an active judicial role of the type Professor Golove contemplates are The Prize Cases (and perhaps other property-seizure cases) from the Civil War and The Paquete Habana from the Spanish-American War.20 But these decisions support only modest judicial oversight of political branch war-fighting decisions. The central question in The Prize Cases21 was constitutional: whether President Lincoln could blockade southern ports without Congress having declared war. Lincoln argued that he could declare a blockade consistent with international law; the Court agreed, and in doing so it accepted uncritically Lincoln’s contentions that international law allowed blockades of rebellious regions and that international law superseded constitutional protections of private property in wartime.22 The Court also for the most part accepted uncritically Lincoln’s view of what the international law of blockade allowed.23 Thus the decision, far from suggesting judicially enforceable law of war limits on core presidential policies, showed the Court’s use of international law to enhance presidential power. The Paquete Habana24 represents the Court’s most aggressive use of international law to constrain executive war-fighting strategy prior to the war on terror cases, but it does not support the weight often placed on it. The Paquete Habana found that the U.S. navy’s seizure of fishing boats during a blockade of Cuba violated international law, 15 16 17 18 19

20 21 22

23

24

Little v. Barreme, 6 U.S. 170 (1804). Murray, 6 U.S. 64; United States v. Schooner Peggy, 5 U.S. 103 (1801). See Chapter 1, pp. 32–33. 12 U.S. 110 (1814). See Chapter 1, pp. 34–35. Justice Story notably said in passing that the laws of war bound the President, Brown, 12 U.S. at 153 (Story, J., dissenting), although this was not his main point and he would have upheld the challenged executive action. While Story’s comment supports a rhetorical just war tradition, it does not demonstrate willingness to intervene against the President on war-fighting strategy. Similarly, The Nereide, 13 U.S. 388, 423 (1815), intimated that departures from the laws of war had to be authorized by Congress rather than the President, but on its actual facts did not decide contrary to executive policy. Prior chapters do not indicate cases from the Mexican War or the numerous conflicts with Native American tribes suggesting a more aggressive role. 67 U.S. 635 (1863). See Thomas H. Lee & Michael D. Ramsey, The Story of the Prize Cases: Executive Action and Judicial Review in Wartime, in Presidential Power Stories 53 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009). Id. at 76–78. An arguably stronger Civil War-era case is United States v. Padelford, 76 U.S. 531 (1869), which invalidated a military seizure of property that occurred near the war’s end. But Padelford, decided long after the war was over, principally concerned postwar reconstruction strategy, not wartime strategy. See Chapter 4, p. 132. No wartime Civil War cases materially limited any executive property seizures. 175 U.S. 677 (1900).

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despite the executive branch’s contrary argument.25 Two key features make it less radical than it might appear. First, the President had directed that the blockade comply with international law and had not directed that fishing boats should be seized. (The seizures were ordered by a local commander and adopted by the President only in subsequent litigation.) Thus the case, decided after hostilities ended, did not challenge presidential war-fighting strategy. Second, the Court appeared to acknowledge that, if the President had an express policy, that policy would control. The Court would independently determine international law’s content, it said, in the “absence of a controlling executive or legislative act.”26 Whatever that phrase’s full meaning, at least it seems to say that, if the President had a sufficiently well-established policy of applying international law in a particular way, the Court would accept the President’s interpretation.27 Thus The Paquete Habana, rather than providing the Court a broad license to interfere with executive war-fighting, gave the Court only a secondary role in implementing the laws of war.28 The Paquete Habana, moreover, was the high-water mark of judicial confrontation with the President over the laws of war. World War I produced no cases in this vein. The World War II law of war cases endorsed executive actions under the laws of war or expressly found the issues beyond judicial competence.29 During the Vietnam War, the Court refused even to consider cases challenging the conflict’s legality.30 In sum, the nation’s law of war tradition does not include judicial intervention in the President’s core war-fighting strategies. That is not to say that the nation lacks a law of war tradition. Throughout our history, Presidents and other executive actors have been understood to have a responsibility to the laws of war.31 But to say the President has a responsibility is not to say the President has a judicially enforceable responsibility. Historically the Court’s law of war role has been interstitial, implementing the laws of war in coordination with the executive branch, or developing them where executive policy was silent and core executive war-fighting strategy was not at stake. In this respect, the war on terror cases departed not only from prior precedent but also from the traditional judicial role more broadly.

III. Conclusion Nonetheless, there is much merit to Professor Golove’s explanation of why the Court in the war on terror cases acted as it did. Whatever one’s view of the President’s antiterrorism strategy on the merits, it is easy to conclude that the George W. Bush administration

25 26 27

28

29 30 31

See Chapter 3, pp. 120–22. 175 U.S. at 700. For contrary views, see William S. Dodge, The Paquete Habana: Customary International Law as Part of Our Law, in International Law Stories 175, 195 (John E. Noyes, Laura A. Dickinson & Mark W. Janis eds., 2007); Chapter 3, pp. 120–22. Similarly, The Buena Ventura, 175 U.S. 384 (1899), invalidated a seizure made by a local commander and later adopted by the President in litigation. Like The Paquete Habana, it was decided after the war was over and did not challenge any war-fighting strategy. See Chapter 4, pp. 132–33. Ex parte Quirin, 317 U.S. 1 (1942); In re Yamashita, 327 U.S. 1 (1946); Hirota v. MacArthur, 338 U.S. 197 (1948); Johnson v. Eisentrager, 339 U.S. 763 (1950); see Chapter 7, pp. 255–56; Chapter 10, pp. 322–24. See Chapter 10, pp. 326–27. E.g., Brown v. United States, 12 U.S. 110, 153 (Story, J., dissenting); The Prize Cases, 67 U.S. 635, 660–61 (1863) (argument of counsel).


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excessively and unwisely asserted independence from legal constraint.32 Some such assertions were almost entirely gratuitous: for example, the administration claimed that the President could “suspend” (refuse to obey) the Geneva Conventions, although the President did not suspend them.33 The administration also failed to make gestures to accommodate law of war standards that would not have greatly constrained its warfighting strategies. It seems clear that the Geneva Conventions require some sort of hearing before a person is denied protected status when the person claims as a factual matter not to be a combatant.34 Yet the administration denied that even minimal review of the detainees’ status was required.35 In this respect the just war tradition Professor Golove identifies – even if it was not a judicially enforced tradition – is crucial. Prior administrations, even while pressing wartime executive power to new heights, engaged the rhetoric of constitutional and international law limits on executive power. Prior Courts, while refraining from interference with core presidential war-fighting policies on law of war grounds, noted that law of war constraints did exist. How much this tradition actually restrained war-fighting strategies, and how much it was merely rhetorical and tactical, is another question. But the Bush administration fostered the impression that it did not take the laws of war seriously even as a rhetorical matter. It is surely plausible that this stance influenced the Court to adopt aggressive countervailing positions. Executive imperialism invited judicial imperialism. But one can press this interpretation only so far. The Court’s initial interventions in Hamdi and Rasul were chiefly directed against the President. Later decisions – the more problematic ones – were principally interventions against Congress. At the Court’s invitation, Congress directly addressed matters at the center of the Court’s cases – military commissions and detention – and generally sided with the President. By the time the Court decided Boumediene, claims of executive unilateralism lacked all foundation.36 The Court called on Congress to intervene, and Congress did – but not the way the Court wanted. The Boumediene Court then further escalated matters by placing judicial intervention on a constitutional basis. That escalation is not easily explained by the Bush administration’s early overreaching. A further explanation might note the early-twenty-first-century Court’s institutional character as self-confident and assertive of its supremacy, a character reflected in the Court’s other international cases. In Medellin v. Texas37 and Sanchez-Llamas v. Oregon,38 the Court asserted its power – above both the President and the International Court of 32 33 34 35 36

37 38

Golove, supra note 1, pp. 566–67; Jack L. Goldsmith, The Terror Presidency (2007); John O. McGinnis, Losing the Law War: The Bush Administration’s Strategic Errors, 25 Ga. St. U. L. Rev. 377 (2008). See Michael D. Ramsey, Torturing Executive Power, 93 Geo. L.J. 1213, 1227–36 (2005). Geneva Convention Relative to the Treatment of Prisoners of War Art. 5, Aug. 12, 1949, 6 UST 3316, 3406, 75 UNTS 135. See McGinnis, supra note 32, at 384–85. Hamdan is more difficult to classify, because there the Court purported to leave open Congress’s ability to legislate contrary to the Court’s decision. But Congress had already signaled strongly its desire that the Court exit the field in the Detainee Treatment Act, 119 Stat. 2680 (2005). Only a strained reading of that Act allowed the Court to claim jurisdiction in Hamdan. See Hamdan v. Rumsfeld, 548 U.S. 557, 655–72 (2006) (Scalia, J., dissenting). And Boumediene made clear that the Court did not, in fact, wish to leave matters to Congress. 552 U.S. 491 (2008). 548 U.S. 331 (2006).

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Justice – to interpret and apply international obligations domestically. In Sosa v. AlvarezMachain,39 the Court found that it need not await Congress’s guidance in creating international law causes of action and also made clear that it had discretion to decide which causes of action to recognize. In F. Hoffmann-La Roche Ltd. v. Empagran S.A.,40 the Court exercised a supervisory role over a statute’s extraterritorial reach but declined to link its role unambiguously to international law. In constitutional interpretation, the Court in Roper v. Simmons41 and Lawrence v. Texas42 asserted its power to look to international and foreign law to support its own intuitions but declined to regard international and foreign law as limiting its interpretive options. And looking beyond international cases one can readily find further evidence of the Court’s elevated sense of its role.43 Of course, the Court is not a single personality but the sum of its Justices, and the relevant cases were decided by shifting majorities under various practical and ideological influences. Nonetheless, the early-twenty-first-century Court’s assertion of an important judicial role overseeing core war-fighting strategies in the war on terror cases sits comfortably alongside the Court’s aggressive assertion of judicial power in an array of other contexts.

39 40 41 42 43

542 U.S. 692 (2004). 542 U.S. 155 (2004). 543 U.S. 551 (2005). 539 U.S. 558 (2003). E.g., Bush v. Gore, 531 U.S. 98 (2000).

VI Conclusion Continuity and Change over Two Centuries David L. Sloss, Michael D. Ramsey, and William S. Dodge

The history of international law in the U.S. Supreme Court from the Court’s inception to 2010 has seen much continuity and much change. The Court’s international law decisions during the first decade of the twenty-first century highlight these themes – deciding new questions and revisiting old ones, sometimes adhering to past precedents and sometimes abandoning them. Drawing on the contributions to this volume, this Conclusion summarizes the most significant ways in which the Court’s approach to international law has remained constant and the most important ways in which it has changed over the course of more than 200 years. The analysis suggests that the pace of change has accelerated over time, with the nineteenth century dominated by continuity, the early twentieth century marked by a mixture of continuity and change, and the post–World War II era characterized by sweeping changes. Although different doctrinal changes occurred at different times, there are few aspects of the Supreme Court’s international law doctrine that remain the same in the twenty-first century as they were 200 years ago.

I. Treaties The Supreme Court’s approach to treaties shows substantial continuity until the middle of the twentieth century, with substantial change occurring after World War II. In Ware v. Hylton,1 decided in 1796, the Court embraced the then-novel idea, reflected in the Constitution’s Article VI, that treaties should function directly as domestic law, giving rise to judicially enforceable rights. Throughout the nineteenth and early twentieth centuries, the Court routinely applied treaties to preempt state law.2 It also played an active role enforcing treaty rights on behalf of individuals, even against the federal government.3 To avoid placing the United States in breach of its treaty obligations, the Court consistently construed treaties in accordance with the principles of good 1 2

3

3 U.S. 199 (1796). See, e.g., Asakura v. City of Seattle, 265 U.S. 332 (1924); Geofroy v. Riggs, 133 U.S. 258 (1889); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603 (1813); Chapter 1, pp. 13–14; Chapter 2, pp. 85–87; Chapter 6, pp. 202–03. See, e.g., Perkins v. Elg, 307 U.S. 325 (1939); United States v. Rauscher, 119 U.S. 407 (1886); United States v. Schooner Peggy, 5 U.S. 103 (1801); Chapter 1, pp. 14–18; Chapter 2, pp. 67–78; Chapter 6, pp. 205–06.

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faith and liberal interpretation,4 and it read statutes to harmonize with treaties when possible.5 One key doctrinal development in the late nineteenth century was the later-in-time rule. During the first half of the nineteenth century, the Court never squarely addressed how to reconcile conflicts between statutes and international law. The Charming Betsy canon, as articulated by Chief Justice John Marshall in 1804, tacitly assumed that in case of a clear conflict a federal statute would prevail over the unwritten law of nations.6 Marshall’s opinion in United States v. Schooner Peggy assumed, without expressly holding, that later-enacted treaties superseded prior inconsistent statutes.7 However, it was not until The Cherokee Tobacco, in 1871, that the Court first held that a later-in-time statute superseded a prior conflicting treaty.8 The later-in-time rule has remained an entrenched feature of the Court’s treaty jurisprudence ever since. Adoption of the later-in-time rule in the late nineteenth century, like the inherent power doctrine discussed below,9 reflected the increasing centralization of power in the federal government after the Civil War and the rise of Congress as the dominant political actor in the United States.10 Despite the advent of the later-in-time rule, in the late nineteenth and early twentieth centuries the Court avoided most conflicts between treaties and statutes by applying the Charming Betsy canon, reserving the later-in-time rule for clear inconsistencies.11 During this period, the Court also crafted an exception to the later-in-time rule for “vested” treaty rights involving property.12 In at least one case it held that a later-in-time treaty superseded a prior conflicting statute.13 By construing statutes narrowly to conform with treaties, the Court often used treaties as a tool to constrain federal executive power.14 Other changes sometimes attributed to the nineteenth and early twentieth centuries appear on closer examination to be overstated. Conventional wisdom holds that the modern doctrine of non-self-executing treaties originated with Marshall’s opinion in Foster v. Neilson in 1829.15 That claim is contestable because – unlike modern doctrine – it is unclear whether, in Marshall’s view, the need for legislative implementation in Foster was based on a constitutional law analysis or a treaty interpretation analysis.16 Regardless, after Foster the Court referenced self-execution doctrine in only a handful of cases before

4

5

6 7 8 9 10

11 12 13 14 15 16

See, e.g., Tucker v. Alexandroff, 183 U.S. 424, 437 (1902); Hauenstein v. Lynham, 100 U.S. 483, 487 (1880); Shanks v. Dupont, 28 U.S. 242, 249 (1830); Chapter 1, pp. 16–18; Chapter 2, pp. 80–85; Chapter 6, pp. 209–15. See, e.g., Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934); Chew Heong v. United States, 112 U.S. 536, 549 (1884); Chapter 1, pp. 18–20; Chapter 4, pp. 133–41; Chapter 6, pp. 208–09. See Chapter 1, p. 37. 5 U.S. 103 (1801); Chapter 1, p. 18. 78 U.S. 616, 621 (1871); Chapter 2, pp. 73–74. See infra pp. 601–02. See, e.g., Woodrow Wilson, Congressional Government: A Study in American Politics 11 (1885) (describing Congress as “unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power” within the United States). See Chapter 4, pp. 133–41; Chapter 6, pp. 208–09. See Jones v. Meehan, 175 U.S. 1 (1899); see also Chapter 2, p. 75. See Cook v. United States, 288 U.S. 102 (1933); Chapter 6, pp. 208–09. See, e.g., Cheung Sum Shee v. Nagle, 268 U.S. 336, 345–46 (1925); United States v. Gue Lim, 176 U.S. 459, 465 (1900); Chew Heong v. United States, 112 U.S. 536, 549 (1884). 27 U.S. 253 (1829). See Chapter 1, pp. 20–23.

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World War II,17 and none of those cases denied relief solely on the ground that a treaty was non-self-executing.18 During the same period, the Court applied treaties in hundreds of cases without stopping to ask whether the particular treaty provision at issue was selfexecuting.19 The Court’s willingness to apply treaties without considering whether the treaty was self-executing was a consistent feature of the Court’s treaty jurisprudence from the 1790s until World War II.20 The Court’s approach to treaty interpretation also remained fairly consistent from the 1790s until World War II, but there were subtle changes. In the early nineteenth century, the Court did not defer at all to the executive branch on questions of treaty interpretation.21 The Court began showing some deference to the Executive on treaty interpretation questions in the late nineteenth or early twentieth century.22 However, in contrast to the post–World War II period, the Court’s practice in the early twentieth century was to defer only to the Executive’s practical construction of a treaty, not to interpretations adopted in the context of litigation.23 The Supreme Court’s 1920 decision in Missouri v. Holland24 is often portrayed as a dramatic change in the Court’s treaty jurisprudence, but Missouri is generally consistent with cases from the nineteenth century.25 Missouri held that treaties may regulate matters beyond the scope of Congress’s enumerated powers, that Congress may enact legislation to implement valid treaties even if it would lack power to enact similar legislation in the absence of a treaty, and that matters properly within the scope of the treaty power are not reserved to the States under the Tenth Amendment.26 Although Missouri was more explicit on these points than earlier cases, several decisions in the nineteenth and early twentieth centuries anticipated Missouri’s central holding,27 and from early in its history the Court enforced treaty provisions that intruded substantially into States’ internal affairs.28 17 18

19 20

21 22 23 24 25 26 27 28

See Chapter 2, pp. 76–80; Chapter 6, pp. 203–04. See Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 601 (2008). The Court decided two cases during this period in which it may have denied relief partly on the grounds that a treaty was not self-executing. See Cameron Septic Tank Co. v. City of Knoxville, 227 U.S. 39, 47–50 (1913); Whitney v. Robertson, 124 U.S. 190, 190–95 (1888); see also Chapter 2, pp. 76–80; Chapter 6, pp. 203–04. See, e.g., Nielson v. Johnson, 279 U.S. 47 (1929); United States v. Rauscher, 119 U.S. 407 (1886); Kennett v. Chambers, 55 U.S. 38 (1852); Chapter 1, pp. 14–16; Chapter 2, pp. 76–80; Chapter 6, pp. 203–04. Whether a treaty creates judicially enforceable rights is a different question. In Head Money Cases, 112 U.S. 580 (1884), the Court noted that there are treaties for which “the judicial courts have nothing to do and can give no redress,” id. at 598, but it also noted that “a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations . . . which are capable of enforcement as between private parties in the courts of the country.” See Chapter 2, pp. 66–67. See Chapter 1, pp. 17–18. See Robert M. Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 Iowa L. Rev. 1723 (2007); Chapter 2, pp. 84–85; Chapter 6, pp. 217–18. See Chapter 6, pp. 217–18. 252 U.S. 416 (1920). See David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000). See Missouri, 252 U.S. 416; see also Chapter 6, pp. 199–202. See, e.g., De Lima v. Bidwell, 182 U.S. 1, 218 (1901); Neely v. Henkel, 180 U.S. 109 (1901); Geofroy v. Riggs, 133 U.S. 258, 267 (1890); Chapter 6, pp. 198–202; Chapter 2, p. 66, n. 69. E.g., Ware v. Hylton, 3 U.S. 199 (1796); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603 (1813); Chirac v. Chirac’s Lessee, 15 U.S. 259 (1817).

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A more significant set of developments concerned alternatives to the Article II treatymaking process. The Court with little difficulty upheld congressional-executive agreements (agreements made by the President with the authority of a simple majority of both houses of Congress) in Field v. Clark in 189229 and again in B. Altman & Co. v. United States in 1912.30 Then in 1937 in United States v. Belmont,31 and again five years later in United States v. Pink,32 at the urging of the Roosevelt administration the Court approved the use of sole executive agreements – international agreements concluded by the President without congressional authorization. Most importantly, the Court held in Belmont and Pink that a sole executive agreement preempted state law to the same extent as a treaty.33 This holding, like others in this period, contributed significantly to the transfer of foreign affairs power from Congress to the executive branch.34 Nonetheless, as late as 1945 the Court’s approach to treaties remained generally consistent with its approach over the previous 150 years. After World War II, however, the Court’s application of treaties as judicially enforceable law changed substantially. The Court continued vigorously to apply treaties regulating relationships among private parties.35 But in contrast to earlier periods,36 the Court “declined to use treaties as an instrument to justify judicial supervision of the political branches in the exercise of their public functions.”37 The Court signaled this change early in the postwar period in an important footnote in Johnson v. Eisentrager in 1950.38 During the Bricker Amendment controversy in the 1950s, members of Congress also expressed qualms about the judicial enforcement of treaties as self-executing federal law.39 The Court’s newfound reluctance to use treaties as a tool to constrain government power was a consistent theme cutting across several doctrinal areas. For example, the Court’s approach to treaty interpretation changed significantly. The traditional canons of good faith and liberal interpretation fell into desuetude.40 They were replaced by a canon 29 30 31 32 33 34

35 36 37 38

39 40

143 U.S. 649 (1892). 224 U.S. 583, 600 (1912). 301 U.S. 324 (1937). 315 U.S. 203 (1942). See Chapter 6, pp. 218–23. See G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1 (1999). Between 1789 and 1939, the United States concluded about 800 treaties and 1,200 executive agreements. Over the next fifty years, to 1989, the United States concluded about 700 treaties and 12,000 executive agreements. Congressional Research Service, Treaties and Other International Agreements: The Role of the United States Senate, S. Rpt. 106–71, at 39 (2001). These figures suggest that Belmont and Pink may have given the Executive much greater freedom to bypass Article II in concluding international agreements. See Chapter 10, pp. 347–51; see also David Sloss, United States, in The Role of Domestic Courts in Treaty Enforcement: A Comparative Study 529–32 (David Sloss ed., 2009). See Chapter 1, pp. 14–18; Chapter 2, pp. 67–68; Chapter 6, pp. 205-06. Chapter 10, p. 331. 339 U.S. 763, 789 n.14 (1950) (stating, with respect to the 1929 Geneva Conventions, that it is “the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.”); see also Chapter 10, p. 324. See Chapter 13, p. 421; Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341 (1995). See Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J. 1885 (2005).

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of deference to the executive branch, which holds that “the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”41 Deference to the Executive became more pronounced in the postwar period: in contrast to earlier periods, the Court sometimes deferred to treaty interpretations adopted by the executive branch solely in the context of litigation.42 Like the approval of sole executive agreements, deference in treaty interpretation reflected the rise of presidential power in foreign affairs. It is too soon to say whether the Court’s 2006 decision in Hamdan v. Rumsfeld,43 where the Court rejected the President’s interpretation of Common Article 3 of the Geneva Conventions, portends a return to a less deferential approach to treaty interpretation.44 Reinforcing the decline of treaties as judicially enforceable constraints on the government, lower courts starting in the 1960s developed new variants of non-self-execution doctrine that limited the judicial application of treaties.45 Relatedly, in the 1970s the executive branch began to submit human rights treaties to the Senate, while routinely attaching declarations stating that the substantive provisions of those treaties were not self-executing.46 At about the same time, lower courts created a novel presumption that treaties do not create judicially enforceable rights.47 Although these cases relied heavily on the Supreme Court’s 1884 decision in the Head Money Cases,48 it is doubtful whether that decision actually supports such a presumption.49 In Argentine Republic v. Amerada Hess Shipping Co. in 1989, the Court stated that two treaties cited by respondents “do not create private rights of action for foreign corporations to recover compensation from foreign states in United States courts,” but it did not articulate a presumption against judicial enforcement of treaties.50 During the late twentieth century, the lower courts rarely invoked non-self-execution doctrine or the presumption against individually enforceable rights in cases between private parties, but they often invoked these doctrines to justify their refusal to enforce treaties against government actors.51 The Supreme Court’s 2008 decision in Medellin v. Texas explicitly endorsed a modern

41 42 43 44

45

46 47 48 49 50 51

El Al Israel Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 168 (1999) (quoting Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982)); see Chapter 10, pp. 335–38. See David J. Bederman, Deference or Deception: Treaty Rights as Political Questions, 70 U. Colo. L. Rev. 1439, 1466–68 (1999). 548 U.S. 557 (2006); see David Golove, The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition, in Part V.E., p. 563. In Boumediene v. Bush, by contrast, the Court, although ruling against the government on other grounds, found the sovereign status of Guantánamo Bay to be a political question and added “even if this were a treaty interpretation case that did not involve a political question, the President’s construction of the lease agreement would be entitled to great respect.” 553 U.S. 723, 753 (2008) (citing Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184–185 (1982)). See David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 3–6, 12–16 (2002) (distinguishing among four versions of non-self-execution doctrine, two of which developed after 1960). See Chapter 13, p. 422. See David Sloss, When Do Treaties Create Individually Enforceable Rights?, 45 Colum. J. Transnat’l L. 20, 106–110 (2006). 112 U.S. 580 (1884); see supra p. 591, note 20. See Chapter 2, pp. 66–67; Sloss, supra note 47, at 92–94. 488 U.S. 428, 442 (1989). See Sloss, United States, supra note 35, at 527–39 (analyzing decisions from 1970 to 2006).

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version of non-self-execution doctrine52 and implicitly approved the presumption against judicially enforceable rights.53 Even enforcement of treaties against the States changed after World War II. Initially, the Court applied treaties in cases such as Clark v. Allen54 and Kolovrat v. Oregon55 to invalidate state laws discriminating against aliens, in keeping with earlier precedents holding that treaties preempted state law. Later, the Court turned to constitutional law to strike down discriminatory state legislation,56 consistent with a broader trend of invoking the Constitution, but not treaties, to constrain government power.57 And in a series of cases involving state violations of the Vienna Convention on Consular Relations (VCCR), the Court declined to order remedies. In Breard v. Greene in 1998, the Court held that Breard could not raise a treaty claim in a federal habeas petition that he had failed to raise in state court.58 In Sanchez-Llamas v. Oregon in 2006, the Court held that state courts did not have to provide remedies to individuals when state officers violated their rights under the VCCR,59 and in Medellin v. Texas in 2008 the Court declined to order Texas to comply with a judgment of the International Court of Justice.60 Thus, the Court confirmed that its growing doubts about the enforcement of treaties to limit government action extended not only to actions of the federal government but also to those of the States.

II. Customary International Law Unlike the direct application of treaties, which remained fairly consistent from the 1790s to the mid-twentieth century and declined thereafter, the story of the Supreme Court’s direct application of customary international law is more cyclical. Direct application of customary international law remained fairly consistent during the eighteenth and nineteenth centuries, declined sharply in the early twentieth century, and experienced a rebirth in the late twentieth century in litigation under the Alien Tort Statute. During the late eighteenth and nineteenth centuries, the Court widely applied customary international law in admiralty cases, which made up a substantial portion of its docket. General maritime law and prize law had long been seen as transnational bodies of law, jointly administered by the courts of every nation, and the Supreme Court adopted this view without controversy in the 1790s.61 The Court’s direct application of

52

53 54 55 56 57

58 59 60 61

Medellin v. Texas, 552 U.S. 491, 504–14 (2008); see Lori F. Damrosch, Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts, in Part V.A, pp. 451–64. The Court relied on Foster v. Neilson, but the rationale in Medellin bears only a faint resemblance to Marshall’s rationale in Foster. See David Sloss, Treaties and the Constitution: Enforcing Treaties Against the States (unpublished manuscript). Medellin, 552 U.S. at 506 n.3. 331 U.S. 503 (1947). 366 U.S. 187 (1961). See Chapter 10, pp. 339–41. Compare Chapter 12, pp. 410–14 (discussing the judicial enforcement of the Constitution as a constraint on the States), with Chapter 10, pp. 339–46 (discussing the Court’s reluctance to apply treaties as a constraint on government action). See also Chapter 13, pp. 426–28. 523 U.S. 371 (1998). Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). Medellin v. Texas, 552 U.S. 491, 504–14 (2008); see Damrosch, supra note 52, pp. 453–56. Talbot v. Jansen, 3 U.S. 133 (1795); Glass v. The Sloop Betsey, 3 U.S. 6 (1794); Chapter 1, pp. 23–24.

Conclusion

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customary international law in prize and maritime cases remained routine throughout the nineteenth century.62 For suits outside admiralty, eighteenth-century Americans began with the background principle articulated by Blackstone: “The law of nations is here adopted in it’s full extent by the common law, and is held to be a part of the law of the land.”63 What this meant in the context of the U.S. federal system was not immediately obvious, but early on the Court came to understand customary international law as part of a broader “general” common law, administered jointly but independently by federal courts and those of the several States.64 Thus, as confirmed in Swift v. Tyson in 1842,65 the Court applied customary international law in private suits – on issues such as commercial law and conflict of laws – without being bound by (or binding) parallel international law decisions of state courts and without relying on state or federal statutes to incorporate it. Correspondingly, the Court held, as with general common law more broadly, that it lacked statutory appellate jurisdiction to review state court decisions applying customary international law because customary international law did not fall within the category of “laws of the United States.”66 As with the Court’s approach to admiralty, the Court’s application of customary international law under this system looked little different at the nineteenth century’s end than it had at the century’s outset.67 While the eighteenth- and nineteenth-century Court generally seemed comfortable applying customary international law as a rule of decision absent other law or executive action, it gave only mixed guidance on customary international law’s relationship to other actors in the domestic legal system. At least as early as 1804, when the Court decided Murray v. Schooner Charming Betsy,68 it tacitly assumed that federal legislation would prevail over conflicting rules of customary international law – an assumption that solidified as the century progressed.69 However, the early Court never squarely confronted the question whether customary international law preempted contrary state statutes. It indicated, without much explanation, that principles drawn from customary international law could override state law in interstate boundary disputes,70 but also implied, in Swift,

62 63 64 65 66

67

68 69

70

Chapter 1, pp. 24–28; Chapter 3, pp. 92–99; see, e.g., The Antelope, 23 U.S. 66 (1825); The Scotia, 81 U.S. 170 (1872); The Paquete Habana, 175 U.S. 677 (1900). 4 William Blackstone, Commentaries on the Laws of England 67 (facsimile 1979) (1769). See Chapter 1, pp. 27–32. 41 U.S. 1 (1842). See, e.g., New York Life Ins. Co. v. Hendren, 92 U.S. 286 (1876); Wulfsohn v. Russian Soviet Federated Soviet Republic, 266 U.S. 580 (1924); see Chapter 3, pp. 117–19; Chapter 7, p. 234; see also Chapter 1, pp. 31–32. The Court heard fewer non-admiralty customary international law cases after the Civil War than it had previously, although its application of customary international law in admiralty remained common. See Chapter 3, pp. 92–99. One significant non-admiralty case apparently decided by reference to the international law of sovereignty was Underhill v. Hernandez, 168 U.S. 250 (1897), in which the Court first embraced the act of state doctrine. See Chapter 3, p. 120. Another key case, Pennoyer v. Neff, 95 U.S. 714 (1878), decided a question of personal jurisdiction by reference to customary international law, although it indicated that for the future such issues would arise under the newly ratified Fourteenth Amendment. Chapter 4, pp. 151–52. 6 U.S. 64, 118 (1804). See William S. Dodge, Customary International Law, Congress, and the Courts: Origins of the Later-inTime Rule, in Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts 531 (Pieter H.F. Bekker, Rudolf Dolzer & Michael Waibel eds., 2010). Rhode Island v. Massachusetts, 37 U.S. 657 (1838).

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that state statutes would displace general common law (perhaps including international law), at least in the commercial field.71 The relationship between the President and customary international law was also unclear, and the Court did little to clarify it. The Court’s early understanding seems to have been that the President was bound by customary international law.72 But that proposition was never tested directly in the nineteenth century, and the extent of deference owed to executive branch interpretations of international law similarly was not elaborated. At the century’s end, the The Paquete Habana’s reference to “controlling executive . . . acts” as a limit on the Court’s application of customary international law73 seemed to suggest that the President might not be bound by it. But the reference remains puzzling – not least because the Court applied customary international law against the executive branch in The Paquete Habana.74 The President’s relationship to customary international law did appear to change in the nineteenth century in one respect. In Brown v. United States in 1814, the Court rejected the proposition (advanced by Justice Joseph Story in dissent) that the law of nations could enhance presidential power in wartime.75 But in The Prize Cases in 1863, the Court appeared to embrace something like Story’s idea, upholding presidential seizures of the property of U.S. citizens, without congressional authorization or the payment of just compensation, because the laws of war permitted them.76 The Court used similar reasoning to uphold seizures and other executive actions consistent with international law during the Spanish-American War.77 Another apparent aspect of change during the nineteenth century concerns the jurisprudential basis of customary international law. Vattel’s eighteenth-century notion that there were several categories of customary international law, some based on natural law and some on state practice, was lost.78 The nineteenth-century Court came to understand customary international law more and more in positivist terms,79 culminating with The Paquete Habana80 in 1900, the “high-water mark of international law positivism in the Supreme Court.”81 Yet the Court’s commitment to international law positivism may have been more rhetorical than real. With the notable exception of The Paquete Habana 71

72 73 74

75 76 77 78 79

80 81

Swift, 41 U.S. at 18–22. As discussed, see Chapter 1, p. 30, the seriatum opinions in Ware v. Hylton are subject to various interpretations on the relationship of state law and the law of nations. In commercial law, the Court had held prior to Swift that state statutes displaced general law, even in international cases; Watson v. Tarpley, 59 U.S. 517 (1856), unsettled that view, but the Court returned to its prior approach in subsequent cases. See Chapter 1, p. 30; Chapter 7, pp. 233–34. See Brown v. United States, 12 U.S. 110, 128–29 (1814); id. at 153–54 (Story, J., dissenting); The Nereide, 13 U.S. 388, 423 (1815); Chapter 1, pp. 34–35. 175 U.S. 677, 700 (1900); see Chapter 3, pp. 120–22. As discussed in Chapter 7, pp. 240–43, several post-Paquete Habana cases suggest that the Court continued to see international law as a limit on the President into the early twentieth century. See, e.g., MacLeod v. United States, 229 U.S. 416, 432 (1913); United States v. Curtiss-Wright Export Co., 299 U.S. 304, 318 (1936). Brown, 12 U.S. at 128; Chapter 1, pp. 34–35; see also Fleming v. Page, 50 U.S. 603 (1850). 67 U.S. 635, 667 (1863). E.g., Juragua Iron Co. v. United States, 212 U.S. 297 (1909); Dooley v. United States, 182 U.S. 222 (1901). See Chapter 1, pp. 8–9. E.g., The Antelope, 23 U.S. 66 (1825); The Scotia, 81 U.S. 170 (1871). As Chapter 3 describes, see pp. 91–99, the transition occurred over the course of the nineteenth century, not becoming fully entrenched until near the century’s end. 175 U.S. 677 (1900). Chapter 7, p. 227.

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itself, the Court rarely looked to actual state practice and was often content to rely on treaties, foreign court decisions, and particularly treatises, frequently at high levels of generality.82 Thus, the jurisprudential shift from natural law to positivism had relatively little effect on the Court’s application of customary international law, which remained fairly consistent throughout the nineteenth century. After the resolution of various disputes arising from the Spanish-American War, the early twentieth century saw a sharp decline in the direct application of customary international law, even as the Court continued to enforce treaties with vigor. Many of the traditional subjects of the Court’s customary international law cases – “pirates, prizes, and privateers” – simply disappeared.83 Other fields that the nineteenth century associated with customary international law became “domesticated.” Constitutional law absorbed personal jurisdiction and the conflict of laws.84 The movement toward codification of broad areas of law, which began in the late nineteenth century and gained strength in the twentieth, displaced international law principles in areas such as international commercial law and admiralty.85 Other areas formerly governed by international law principles refocused on domestic concerns. Admiralty, to the extent not codified, turned more to domestic priorities such as uniformity among the States.86 Foreign sovereign immunity became a rule of total deference to the President.87 By mid-century, customary international law was left with little space in which to work. To the extent that U.S. courts still applied customary international law directly, the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins88 dramatically unsettled customary international law’s place in the domestic legal system. Erie overruled Swift v. Tyson and abolished the category of general common law into which customary international law had previously been thought to fall.89 In Erie’s wake, a number of formerly international law topics became matters of state law, including conflict of laws (especially as the Court retreated from strong constitutional rules in that field) and enforcement of judgments.90 A few subjects instead became characterized as a new “federal common law” – principally interstate disputes and admiralty.91 This created 82 83 84 85 86 87 88 89

90 91

See Chapter 3, pp. 103–12; see also Chapter 4, pp. 80–83 (discussing United States v. Arjona, 120 U.S. 479 (1887)). See Chapter 7, pp. 225, 235. Id., pp. 235–36; see Allgeyer v. Louisiana, 165 U.S. 578 (1897); New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918). See Chapter 7, p. 235. E.g., S. Pac. Co. v. Jensen, 244 U.S. 205, 215–16 (1917); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920). Ex parte Republic of Peru, 318 U.S. 578, 588–89 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945); see Chapter 7, p. 238. 304 U.S. 64 (1938). Erie’s central holding was that “[e]xcept in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” Id. at 78. As recounted in Chapter 7, pp. 228–29, 243, this conclusion rested on a positivist notion of law as proceeding from a sovereign’s command. Erie’s “domestic law positivism,” as Chapter 7 terms it, is distinct from the idea of international law positivism that arose in the nineteenth century, which thought law could arise from the explicit or implicit agreement of multiple sovereigns. Chapter 7, p. 227, p. 229, n. 19. See Chapter 7, p. 245. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938); Davis v. Department of Labor & Industries, 317 U.S. 249, 255–56 (1942); Chapter 7, pp. 247–48. Notably, in these categories common law, including international law, had been found to override state law before Erie. See Chapter 7, pp. 230–33.

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a number of different possibilities for understanding how customary international law fit into the U.S. legal system.92 Most significantly, it became unclear to what extent federal courts retained the capacity to apply customary international law independently of state law. Thus in the mid-century Court, customary international law seemed to have lost not only its traditional subject matter but also the theoretical foundation for its direct application. Moreover, the Court did not call into question its longstanding assumption that Congress could displace customary international law if it wished.93 And the rise of presidential power in various aspects of foreign relations – including in the application of foreign sovereign immunity94 – lent new credence to the idea that customary international law might be displaced by executive authority as well. Customary international law’s rebirth in the Supreme Court began with Banco Nacional de Cuba v. Sabbatino in 1964,95 ironically a case that used the act of state doctrine to reject a claim brought under the international law of expropriation. Sabbatino expressly disconnected the act of state doctrine from international law, describing it instead in separation of powers terms. But Sabbatino’s treatment of the act of state doctrine as federal common law, and its apparent endorsement of the argument that Erie did not apply to international law, suggested that customary international law might also be understood as federal common law.96 This question became more pressing toward the end of the twentieth century with the advent of human rights litigation under the Alien Tort Statute (ATS). Beginning with Filartiga v. Pena-Irala in 1980,97 lower federal courts used this previously obscure statute as a foundation for suits against foreign officials, and later private corporations, for human rights abuses.98 The law these lower courts applied was new, having arisen from the ashes of the Holocaust. It was also more domestically intrusive than older species of customary international law because it governed relationships between nations and their own people. In Sosa v. Alvarez-Machain,99 the Supreme Court cautiously endorsed the direct application of widely accepted and specifically defined rules of human rights law under the ATS.100 In answer to the question raised by Erie, Sosa appeared to treat customary international law as federal common law,101 at least for suits under the ATS. The extent to which customary international law is federal common law for other purposes has yet to be worked out,102 but to at least a limited extent Sosa marked customary international law’s return to the Supreme Court after a long absence. Sosa is remarkable for the attention its opinions pay to questions of continuity and change. Arguing against the direct application of human rights law, Justice Antonin 92 93 94 95 96 97 98 99 100 101 102

See Chapter 7, pp. 245–54. See, e.g., Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (citing Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804), and The Nereide, 13 U.S. 388, 423 (1815)). See Chapter 7, p. 238. 376 U.S. 398 (1964). See Chapter 11, pp. 359–63. 630 F.2d 876 (2d Cir. 1980). See Chapter 11, pp. 366–75. 542 U.S. 692 (2004). See John O. McGinnis, Sosa and the Derivation of Customary International Law, in Part V.B, pp. 481–93. 542 U.S. at 732 (referring to claims “under federal common law” for violations of customary international law). See William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12 Tulsa J. Comp. & Int’l L. 87 (2004).

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Scalia pointed to the “avulsive change” wrought by Erie.103 “Post-Erie federal common lawmaking,” he asserted, “is so far removed from that general-common-law adjudication which applied the ‘law of nations’ that it would be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable the latter.”104 In reply, the Court’s majority invoked the theme of continuity: “We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.”105

III. International Law as an Interpretive Tool A. Statutory Interpretation As with direct application of treaties and customary international law, the Supreme Court’s use of international law to interpret federal statutes remained fairly consistent through the nineteenth century. Writing in 1804 in Charming Betsy, Chief Justice Marshall famously declared “that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”106 Although this principle did not become known as the “Charming Betsy canon” until after World War II,107 the Court routinely applied it throughout the nineteenth century to harmonize federal statutes with both treaties and customary international law.108 During the early twentieth century, the Court continued to apply the Charming Betsy canon vigorously to resolve conflicts between treaties and statutes.109 But the Court’s application of the canon with respect to customary international law declined.110 Thus, in the early twentieth century, the indirect use of international law in statutory interpretation mirrored developments in direct application cases: the Court continued to apply treaties, both directly and indirectly, but infrequently applied customary international law, either directly or indirectly. One traditional use of the Charming Betsy canon was to help determine statutes’ territorial reach – indeed the presumption against extraterritoriality was born from the marriage of the Charming Betsy canon to customary international law rules limiting each nation’s jurisdiction (with a few exceptions) to its own territory.111 In 1909, the Court reaffirmed the presumption against extraterritoriality in American Banana Co. v. United Fruit Co.,112 relying principally on conflict of laws principles and comity. But the Court soon abandoned strict territoriality in statutory interpretation and experimented 103 104 105 106 107 108 109 110

111 112

542 U.S. at 744 (Scalia, J., concurring in part and concurring in the judgment). Id. at 745 (Scalia, J., concurring in part and concurring in the judgment). Id. at 730; see also Edward A. Purcell, Jr., Comment on Sosa: History, Ideology, and Erie v. Tompkins, in Part V.B. pp. 499–504. Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804). See Chapter 4, p. 133. See, e.g., United States v. Padelford, 76 U.S. 531, 540 (1870); Chew Heong v. United States, 112 U.S. 536, 549 (1884); Chapter 4, pp. 125–33. See, e.g., Pigeon River Imp. Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934); Johnson v. Browne, 205 U.S. 309, 321 (1907); see also Chapter 6, p. 208. See Chapter 8, pp. 259–69. But see MacLeod v. United States, 229 U.S. 416, 434 (1913) (“The statute should be construed in the light of the purpose of the Government to act within the limitations of the principles of international law.”). See Chapter 1, pp. 38–39. 213 U.S. 247 (1909).

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with various approaches.113 It referred to customary international law sporadically in these cases, and often to support rather than to restrain the extraterritorial application of U.S. law.114 During the second half of the twentieth century, the Court occasionally applied the Charming Betsy canon to interpret statutes consistently with treaties (now including executive agreements),115 but it did so opportunistically.116 The Court sometimes (but not always) looked to customary international law to help define the reach of maritime statutes.117 In other extraterritoriality cases, the canon played virtually no role.118 By the time of Foley Bros., Inc. v. Filardo in 1949, the link between the presumption against extraterritoriality and customary international law had been severed, and the Court based the presumption instead “on the assumption that Congress is primarily concerned with domestic conditions.”119 But the Court was not consistent here either: sometimes it applied the presumption aggressively, as in its 1991 decision in EEOC v. Arabian American Oil Co. (Aramco),120 but it declined to apply the presumption in cases such as Steele v. Bulova Watch Co.121 and Hartford Fire Insurance Co. v. California.122 The most recent decade has been one of continued confusion in the Supreme Court’s extraterritoriality cases: the Court has sometimes applied the presumption against extraterritoriality, sometimes newly minted principles of construction, but rarely the Charming Betsy canon.123 The post-2001 war on terror cases contained some use of international law in statutory interpretation, although where they will lead remains to be seen. In Hamdan v. Rumsfeld, the Court construed the Uniform Code of Military Justice to incorporate Common Article 3 of the Geneva Conventions and on this basis invalidated the military commissions established by the President to try terrorist suspects.124 In Hamdi v. Rumsfeld, the Court used the laws of war to construe Congress’s Authorization for Use of Military Force (AUMF) to authorize detention of an alleged enemy combatant who was a U.S. citizen as long as “United States troops are still involved in active combat operations,”125 despite an earlier statute generally limiting detention of U.S. citizens.126 Hamdi is remarkable 113

114 115 116 117 118 119 120 121 122 123

124 125 126

See Chapter 8, pp. 259–69. The Court continued to apply the presumption against extraterritoriality in a few cases. See N.Y. Cent. R.R. Co. v. Chisholm, 268 U.S. 29, 32 (1925); Sandberg v. McDonald, 248 U.S. 185, 195 (1918). See, e.g., Blackmer v. United States, 284 U.S. 421, 437 (1932); Ford v. United States, 273 U.S. 593, 622–24 (1927). See Weinberger v. Rossi, 456 U.S. 25 (1982). See Chapter 12, pp. 381–401. See Lauritzen v. Larsen, 345 U.S. 571, 578 (1953); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963); Chapter 12, pp. 381–86. See Chapter 12, pp. 387–93. 336 U.S. 281, 285 (1949). 499 U.S. 244, 248 (1991); see Chapter 12, pp. 388–89. 344 U.S. 280 (1952). 509 U.S. 764 (1993); see William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85 (1998). See Ralf Michaels, Empagran’s Empire: International Law and Statutory Interpretation in the U.S. Supreme Court of the Twenty-First Century, in Part V.D, pp. 533–46; William S. Dodge, Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century, in Part V.D, pp. 547–52. 548 U.S. 557, 613 (2006). As noted earlier, supra p. 593, Hamdan’s more remarkable attribute was its failure to accord deference to the President’s interpretation of the Geneva Conventions. 542 U.S. 507, 521 (2004) (plurality opinion). Id. at 518–21. For a critical view of the Court’s use of international law in Hamdi, see Ingrid Brunk Wuerth, Authorizations for the Use of Force, International Law, and the Charming Betsy Canon, 46 B.C. L.

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as the first case in almost one hundred years, except for a few maritime cases, where the Court relied heavily on customary international law to guide its interpretation of a federal statute. Whatever else might be said about the war on terror cases, they show the Court’s ability to invoke international law both for and against the government.

B. Constitutional Interpretation Before 1860, the Supreme Court looked to international law as an aid to constitutional interpretation, particularly in the area of federalism.127 During this period, the Court’s use of international law was somewhat inconsistent and opportunistic.128 From the Civil War to World War II, the Court generally used international law in constitutional interpretation to support the federal government’s power.129 In contrast, over the past few decades the Court has typically used international law in constitutional interpretation to expand individual rights.130 During the late nineteenth century, the Court developed the concept of “powers inherent in sovereignty” to uphold the constitutionality of federal legislation – for example, to issue paper money, take property, and regulate immigration – without reference to Congress’s textually enumerated Article I powers.131 To determine the content of inherent sovereign powers, the Court looked to international law, often at a high level of generality.132 The first express reliance on the inherent powers doctrine came in the Legal Tender Cases,133 decided on the very same day in 1871 that the Court first adopted the later-in-time rule.134 As with the later-in-time rule, the Court chose not to resist the newly assertive post–Civil War Congress. In 1936, United States v. Curtiss-Wright Export Corp. extended the idea of inherent powers to the executive branch. The Court asserted that upon independence the power over foreign affairs had passed directly from the British Crown to the United States collectively so that the federal government’s “powers of external sovereignty did not depend upon the affirmative grants of the Constitution.”135 Further, wrote Justice George Sutherland for the Court, this inherent foreign affairs power was vested in the President

127 128 129 130 131

132

133 134

135

Rev. 293 (2005). Whether Hamdi implied that the AUMF precluded the President from taking measures violating the laws of war is less clear. See Golove, supra note 43, pp. 567–68 (arguing that it did). See Chapter 1, pp. 41–44; see also Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006). See, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857). See Chapter 4, pp. 142–52; Chapter 8, pp. 269–83. See Chapter 12, pp. 410–14; Mark Tushnet, International Law and Constitutional Interpretation in the Twenty-First Century: Change and Continuity, in Part V.C, pp. 507–17. See, e.g., Legal Tender Cases, 79 U.S. 457 (1871); United States v. Jones, 109 U.S. 513 (1883); Nishimura Ekiu v. United States, 142 U.S. 651 (1892). Compare McCulloch v. Maryland, 17 U.S. 316, 405 (1819) (noting that the federal government “is acknowledged by all, to be one of enumerated powers”). See Chapter 4, pp. 152–55; Chapter 8, pp. 274–83; Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002). 79 U.S. at 556 (Bradley, J, concurring). The Cherokee Tobacco, 78 U.S. 616, 621 (1871). The connection between the two cases may go deeper. The Cherokee Tobacco relied heavily on Justice Curtis’s opinion as Circuit Justice in Taylor v. Morton, which justified the later-in-time rule in part by invoking an inherent powers rationale. 23 F. Cas. 784, 786 (C.C. Mass. 1855) (“To refuse to execute a treaty . . . is a prerogative, of which no nation can be deprived, without deeply affecting its independence. . . . I feel no doubt that it belongs to congress.”). 299 U.S. 304, 318 (1936).

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“as the sole organ of the federal government in the field of international relations.”136 This extension of the inherent powers doctrine – like the recognition of sole executive agreements in Belmont137 (another Sutherland opinion) and the conversion of foreign sovereign immunity to a doctrine of executive suggestion in Ex Parte Republic of Peru138 – coincided with a significant shift of foreign affairs power from Congress to the executive branch.139 After World War II, the inherent powers doctrine declined. In Youngstown Sheet & Tube Co. v. Sawyer, the Court rejected the argument that the President had inherent power to seize steel mills during the Korean War.140 Although the Court invoked the notion of inherent congressional powers in cases decided in the 1950s,141 it ultimately abandoned the doctrine in the 1960s,142 except in the area of immigration law where it morphed into the notion of plenary power.143 During the late nineteenth century, the Court used international law not only to validate federal legislation but also to limit the application of constitutional rights to the boundaries of the United States. Reflecting the territorial understanding of jurisdiction in the late nineteenth century, the Court held that constitutional jury trial rights protected aliens in the United States,144 but did not protect seamen on American ships abroad.145 The Constitution, said the Court in In re Ross, “can have no operation in another country.”146 By limiting constitutional rights to the geographic territory of the United States, the Court enhanced government power abroad. As with statutory interpretation, however, strict territoriality gave way in the twentieth century to more flexible approaches. In 1901, the Court held in The Insular Cases that some (but not all) provisions of the Constitution applied in unincorporated U.S. territories.147 In 1957, the Court held in Reid v. Covert that the Fifth and Sixth Amendments applied to American citizens in foreign countries.148 In United States v. Verdugo-Urquidez in 1990,149 the Court held that the Fourth Amendment did not apply to the search of an alien’s property abroad, although Justice Anthony Kennedy suggested that the reach of the Constitution might depend on the right being claimed.150 Writing for the Court in Boumediene v. Bush in 2008, Kennedy held that the constitutional privilege of habeas corpus extended to aliens held by the United States at Guantánamo Bay, Cuba.151 The Court’s extension of constitutional rights to individuals outside the United States was consistent with the 136

137 138 139 140 141 142 143 144 145 146 147 148 149 150 151

Id. at 320. The Court also noted, however, that operations outside the United States “must be governed by treaties, international understandings and compacts, and the principles of international law.” Id. at 318. United States v. Belmont, 301 U.S. 324 (1937). 318 U.S. 578 (1943). See White, supra note 34. 343 U.S. 579, 585 (1952) (“The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.”). See Perez v. Brownell, 356 U.S. 44, 57 (1958); Harisiades v. Shaughnessy, 342 U.S. 580, 587–88 (1952); Chapter 12, pp. 408–10. See Afroyim v. Rusk, 378 U.S. 253 (1967); Chapter 12, p. 412. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (stating that “Congress has ‘plenary power’ to create immigration law . . . subject to important constitutional limitations”). See Wong Wing v. United States, 163 U.S. 228 (1896). See In re Ross, 140 U.S. 453 (1891); Chapter 4, pp. 148–50. 140 U.S. at 464. See, e.g., Downes v. Bidwell, 182 U.S. 244 (1901); see Chapter 8, pp. 271–72. 354 U.S. 1 (1957) (plurality). 494 U.S. 259 (1990). See id. at 275–78 (Kennedy, J., concurring). 553 U.S. 723 (2008); see Golove, supra note 43, pp. 562–63.

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broader trend of using the Constitution to protect individual rights and limit government power. Related to the cases determining the territorial reach of the Constitution is another line of cases stretching from the Civil War to the mid-twentieth century, in which the Court rejected constitutional claims by enemies during wartime.152 Enemy status was, at least in part, defined territorially – all those residing in hostile territory were considered enemies, even citizens of the United States.153 Citizens of hostile states were also considered enemies,154 as were others (again including U.S. citizens) who joined hostile forces.155 Beginning with The Prize Cases, the Court repeatedly rejected claims for compensation under the Fifth Amendment Takings Clause for enemy property seized or destroyed by the United States during war.156 In other cases, it held that the Fifth and Sixth Amendments’ criminal procedure provisions did not protect enemies.157 On the other hand, in Ex parte Milligan the Court confirmed that the Constitution, not the laws of war, “applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.”158 The last case in this line was Johnson v. Eisentrager in 1950. There the Court held that enemy aliens convicted of war crimes by a military commission and held outside the United States were not entitled to bring habeas corpus petitions.159 The Court further stated in dictum that such aliens were not protected by the Fifth Amendment Due Process Clause or the Sixth Amendment jury trial right.160 During the second half of the twentieth century, the Court’s use of constitutional rights to limit government power expanded dramatically, but no cases involving alleged enemies during wartime reached the Court until the first decade of the twenty-first century. Boumediene v. Bush161 marked a distinct break from Eisentrager and the war powers cases that had preceded it; the Court held that alleged enemy aliens at Guantánamo Bay were constitutionally entitled to challenge the lawfulness of their detentions by filing writs of habeas corpus.162 The Court’s war powers cases thus show the same trajectory as its cases involving the territorial reach of the Constitution – a trajectory away from government power and toward individual rights. A distinct set of cases involved the Court’s use of international law to interpret the Constitution’s protection of individual rights within the United States in peacetime. During the nineteenth century, the Court occasionally invoked international law to support an interpretation of the Fourteenth Amendment that broadened protection of 152 153 154 155 156 157 158 159 160 161 162

See Chapter 4, pp. 142–47; Chapter 8, pp. 275–78. The Prize Cases, 67 U.S. 635, 674 (1863); Miller v. United States, 78 U.S. 268, 310–11 (1871); Juragua Iron Co. v. United States, 212 U.S. 297, 306 (1909). The Benito Estenger, 176 U.S. 568, 571 (1900); see also Johnson v. Eisentrager, 339 U.S. 763, 771–76 (1950). Miller, 78 U.S. at 311; Ex parte Quirin, 317 U.S. 1, 37 (1942). The Prize Cases, 67 U.S. at 671–74; Juragua Iron, 212 U.S. at 303–10. Miller, 78 U.S. at 304–14; Quirin, 317 U.S. at 38–45. 71 U.S. 2, 121 (1867). 339 U.S. at 777–81. Id. at 782–85. 553 U.S. 723 (2008). Id. at 771; see Golove, supra note 43, pp. 562–63. The Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), applied the Due Process Clause to an alleged enemy combatant. But this was less of a break with the Court’s past cases (if indeed any break at all) because Hamdi was a U.S. citizen held in U.S. territory who asserted that he had never joined forces hostile to the United States.

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individual rights.163 However, these cases were exceptional: from the Civil War until World War II, the Court typically used international law in constitutional interpretation to enhance government power.164 In contrast, after World War II the Court increasingly relied on international law and foreign practice to support expansive protection for individual rights. In 1958, Chief Justice Earl Warren relied on foreign practice in Trop v. Dulles to conclude that deprivation of citizenship as a punishment for desertion violated the Eighth Amendment.165 In 1977, the Court invoked “international opinion” in concluding that the death penalty violated the Eighth Amendment as a punishment for rape.166 After Justice Scalia joined the Court in 1986, reliance on foreign practice and international law to interpret the Constitution became newly controversial, particularly in cases involving state criminal law.167 But the Court continued to invoke such sources, albeit in conjunction with others on which it placed more weight – most recently in Graham v. Florida in 2010,168 which applied the Eighth Amendment to prohibit life imprisonment without possibility of parole for juvenile offenders.

IV. Continuity and Change, 1789–2010 As the initial chapters of this book recount, the Supreme Court’s international jurisprudence remained broadly consistent from the late eighteenth century to the end of the nineteenth, with the Court actively relying on and enforcing both treaties and customary international law. There were changes to be sure. With the rise of Congress after the Civil War, the Court adopted a later-in-time rule to resolve conflicts between treaties and federal statutes, and the Court looked to “powers inherent in sovereignty” to support the exercise of government powers not enumerated in the Constitution. Reflecting jurisprudential developments in international law, the Court’s approach to customary international law shifted (at least rhetorically) from natural law to positivism. But the overall trend was one of continuity. For treaties, this trend extended well into the twentieth century. The direct application of customary international law, by contrast, declined almost to the vanishing point during the first half of the twentieth century, while the basis for applying customary international law in federal court was called into question when the Court abolished the category of “general” common law, of which customary international law had been a part. The years between World War I and World War II also saw greater assertions of power by the President and corresponding shifts in Supreme Court doctrine. During the interwar years, the Court embraced the notion of inherent presidential power over foreign affairs; it endorsed the use of sole executive agreements to preempt state law; and it deferred completely to the Executive on questions of foreign sovereign immunity. After World War II, the Court’s use of international law to restrain the government underwent an important transformation. In earlier periods, the Court frequently applied treaties as a constraint on government action, but typically used international law in 163 164 165 166 167 168

See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); Pennoyer v. Neff, 95 U.S. 714 (1878); Chapter 4, pp. 150–52. See Chapter 4, pp. 142–52; Chapter 8, pp. 269–83. 356 U.S. 86 (1958); see Chapter 12, pp. 410–11. Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977). See Chapter 12, pp. 410–14; Tushnet, supra note 130. 130 S. Ct. 2011 (2010).

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constitutional interpretation to enhance government power. In the postwar period, the Court became increasingly reluctant to apply treaties against the government, although it became more aggressive in deploying the Constitution to restrain government power. In the latter enterprise, the Court sometimes used international and foreign law in interpreting the Constitution to support broader protection of individual constitutional rights within the United States. The past decade has been a mixed one for international law in the Supreme Court. It has brought further retreat from the direct application of treaties, but cautious approval of the direct application of customary international law. It has brought doctrinal confusion in statutory interpretation and controversy in constitutional interpretation. And it has brought conflict between the Court and the political branches over the war on terror. Whether the first decade of the twenty-first century will prove to be another turning point for international law in the U.S. Supreme Court, it is too soon to say.

Index

Abandoned and Captured Property Act, 131 abortion rights, 514, 519. See also constitutional interpretation, use of international law access to court for private plaintiffs, 555–58. See also judicial avoidance; private right of action act of state doctrine, 119, 157, 223, 237–39, 246, 251, 262, 313, 353, 359–66, 431–33, 437, 598. See also expropriation; Foreign Sovereign Immunities Act Adams, John (President), 26 Adams, John Quincy (President), 170, 467, 469 Administrative Procedure Act, 474 administrative state, rise of, 318. See also President, rise of executive power after World War I admiralty jurisdiction, 12, 19, 23–26, 37–46, 116, 119, 126, 231–33, 235, 244, 248–50, 305, 326, 347, 503. See also Constitution of the United States, Article III; federal jurisdiction admiralty law, 23–26, 94–96, 109–10, 127, 247, 293, 597. See also general maritime law; maritime law; prize law adversary system, 514–15, 520–21 advisory opinions, 46, 566, 573 Alabama Claims Commission, 65, 174, 308, 461 Algiers Accords, 334 Alien Tort Statute, 7, 23, 28, 31, 241–42, 307, 353, 354, 357, 363, 366–77, 379, 433–34, 444–45, 479, 481–84, 488, 489, 492, 496–98, 500, 594, 598. See also customary international law, direct application of; international human rights aiding and abetting liability, 373 ambassadors, 11, 12 corporate liability, 372–73 American Law Institute, 509 American Society of International Law, 174, 308, 312 Antiterrorism and Effective Death Penalty Act (AEDPA), 399–401, 441, 455, 458–59. See also habeas corpus

antitrust law, extraterritorial application of, 260–67, 445, 533–45, 549, 550, 552. See also extraterritorial application of statutes; statutory interpretation, presumption against extraterritoriality Arthur, Chester (President), 174 Article III. See Constitution of the United States, Article III Articles of Confederation, 9–12, 45 Austin, John, 62, 166 Authorization to Use Military Force (AUMF), 567, 579, 600. See also war on terror Baldwin, Henry (Associate Justice), 42 Barbour, Philip (Associate Justice), 42 Bentham, Jeremy, 62 Bill of Rights, 272–75, 297–98, 305, 380, 431, 562, 564, 565, 578 Black, Hugo (Associate Justice), 340, 358 Blackmun, Harry (Associate Justice), 329, 330, 334 Blackstone, William, 8, 37, 478, 497 blockade, 97, 104–5, 110–11, 121–22, 142–44, 585–86. See also prize law Bork, Robert (Judge), 369–70, 375, 434 boundary disputes. See interstate disputes Boundary Waters Treaty of 1909, 351 Boxer Rebellion, 220 Bradley, Joseph (Associate Justice), 94, 95, 100, 114–16, 118, 119, 130–31, 139, 153, 303 Brandeis, Louis (Associate Justice), 232, 243–48, 251–54, 272–73, 290–94, 363, 430, 512 breach of international obligations. See violations of international law Brennan, William (Associate Justice), 333–34, 345, 411, 414, 436 Bretton Woods, 318 Brewer, David (Associate Justice), 293 Breyer, Stephen (Associate Justice), 513, 533–39, 541–42, 544, 545, 547–52, 558

607

608 Bricker Amendment, 332, 345–46, 418, 421, 428, 592 British naval supremacy, 47 Brown, Henry (Associate Justice), 107, 126, 139 Brownlie, Ian, 359 Brussels Convention on Bills of Lading, 348–50 Burger, Warren (Chief Justice), 334, 336, 418, 442, 501, 509 Burlamaqui, Jean-Jacques, 8 Burlingame Treaty, 69 Bush, George W. (President), 454, 567, 576, 586–87 Bynkershoek, Cornelius van, 8 capital punishment, 307, 339, 346, 412–14, 437, 441, 445, 453–54, 460, 476, 500, 510, 517, 524–25, 527–28, 604. See also constitutional interpretation, use of international law Cardozo, Benjamin (Associate Justice), 239–40 Carriage of Goods by Sea Act (COGSA), 348–50 Carter, James (President), 334, 421 Chaco War, 279 Charming Betsy canon, 37–38, 40, 46, 49, 50, 124–25, 141, 161, 380–81, 394–547. See also later-in-time rule, and customary international law; statutory interpretation and constitutional interpretation, 527, 529 and customary international law, 38–39, 117, 129–33, 259–60, 381–86, 393, 435, 438–40, 485–86, 551–52, 590, 599–600 and executive agreements, 399, 440–41, 600 and international relations, 534–38 and treaties, 67, 74–75, 133–41, 259, 401, 441, 455, 458–59, 465, 486, 589–90, 599–600 Chase, Salmon (Chief Justice), 89, 92, 97, 104, 111, 146, 183 Chase, Samuel (Associate Justice), 13, 14, 16, 27, 456 Chinese Exclusion Act, 68–70, 154 Chinese immigration, 68–70, 88, 134–35, 154–55, 311 citizenship, 150–51, 276–77, 339, 342–44, 409–12 civilized and uncivilized states, 65, 308–12, 542–43 civil litigation, perceived excesses of U.S. system, 554–56, 558 civil rights movement, 318–19, 339, 345, 416–18, 425–27, 431, 435, 438, 441 Civil War, 45, 55, 56, 88–90, 97, 110, 131, 142–47, 153, 162, 169–70, 172, 176, 298–99, 311, 562, 565, 574, 585, 590, 603, 604 claims commissions, 64–65, 71–72. See also Alabama Claims Commission; Mexican-American Claims Commission Clark, Tom (Associate Justice), 326, 344 Clarke, John (Associate Justice), 232 class action litigation, 550–51 Clifford, Nathan (Associate Justice), 96–97, 106 Cold War, 318, 321, 402, 418, 419, 421, 428, 567

Index comity, 29–30, 40, 91, 100–3, 111–12, 234, 249, 262, 268–69, 295–96, 380–84, 392, 438, 440, 446–47, 546, 547, 552, 600. See also judicial deference Commerce Clause, 42–43, 199, 293, 305, 436–37 commercial law, 27–28, 595. See also general commercial law; general common law; international commercial law Common Article 3. See Geneva Conventions common law. See federal common law; general common law communism, 321, 360 Communist Party, 343, 436 Compact Clause, 42 comparative civil procedure, 553–54, 558 compliance with international law, 9–12, 50, 134–35, 141, 161, 208, 224, 451, 454–59, 463–65, 467, 469, 485. See also violations of international law conflict of laws, 29–30, 102, 235–36, 245–46, 252–55, 260, 262, 266–67, 269, 284, 289, 296, 299, 310, 382–83, 503, 540–41, 595, 597, 599 conflicts between statutes and customary international law. See Charming Betsy canon; later-in-time rule conflicts between statutes and treaties. See Charming Betsy canon; later-in-time rule Congress Article I powers, 12, 143–47, 152–55 declarations of war, 332. See also war powers enumerated powers. See enumerated powers doctrine exclusive powers, 19–20 foreign affairs powers, 12 inherent powers. See inherent powers doctrine plenary power. See plenary power doctrine power to implement treaties, 83–84, 87–88, 591 power to supersede customary international law, 32–33, 116–17, 145, 242–43, 377, 486, 491, 584, 595, 598. See also later-in-time rule power to supersede treaties, 57–59, 67, 73–75, 134–35, 286. See also later-in-time rule rise of congressional power after Civil War, 57–59, 88, 183–86, 301–2, 590, 601, 604 separation of powers. See separation of powers war powers. See war powers Congress of Vienna, 45 congressional-executive agreements. See executive agreements Constitution of the United States Article I, 147, 601. See also Congress Article II, 287, 306, 331, 462. See also President Article III, 12, 117, 250, 363, 368–69, 374–75, 378, 403–4, 432, 467–70, 565, 571. See also judicial power Article VI. See Supremacy Clause Constitutional Convention of 1787, 249, 456

Index constitutional interpretation. See also capital punishment and Charming Betsy canon, 527, 529 cherry-picking, 513–15, 519–21 and foreign practice, 272–75, 297–98, 509–12 infusionary textualism, 301–7, 312 law-office history, 514–15, 519 living constitutionalism, 515, 578–79 originalism, 124, 163–300, 321, 419, 489–90, 502, 511–16, 518, 523, 576 and partisan politics, 499–500 textualism, 154, 162, 306–7, 478 and treaty law, 319–20, 331, 338–46, 352, 427–28, 594 use of foreign law, 272–75, 297–98, 412–14, 445, 507–21, 588, 604–5 use of history, 519–20 use of international law generally, 41–44, 141–42, 161, 320, 380, 406–14, 435–37, 507–21, 523–29, 588, 601–5 use of international law to constrain government power, 146, 276–77, 412, 431, 516–17, 568, 602, 604–5 use of international law to enhance government power, 146, 154, 163, 257–58, 269, 271, 275–83, 295–98, 310, 436–37, 516–17, 601–5. See also inherent powers doctrine; plenary power doctrine use of international law to protect individual rights, 149–52, 155, 274–75, 380, 410–14, 418–19, 436–37, 445, 516–17, 568, 601–5 use of non-binding treaties, 526–29 consuls, 128–30 Continental Congress, 11. See also Articles of Confederation Convention Against Torture, 422 Convention for the Elimination of Racial Discrimination, 422 Convention on the Rights of the Child, 527, 528 Convention on the Territorial Sea, 348–49, 358 cosmopolitanism, 516 court martial, 344–45 creeping monism, 527–29 Crimean War, 109 culture wars, 516 Curtis, Benjamin (Associate Justice), 19, 74 Cushing, William (Associate Justice), 14, 25 customary international law and admiralty, 23–26, 90, 92, 97–99, 289, 594–95, 597. See also admiralty law; general maritime law; maritime law; prize law and Congress, 32–34, 107, 114–17, 240–43, 358, 595. See also Congress, power to supersede customary international law in constitutional interpretation, 41–44. See also constitutional interpretation, use of customary international law

609 and criminal prosecutions, 26–27, 103, 110 decline of, 226, 234–38, 256, 597, 604 direct application of, 11, 23–31, 49, 102, 113–17, 126, 226, 229–38, 244–49, 251–56, 289–90, 353–76, 444–45, 481–85, 500, 594–95, 597–99, 604, 605 evidence of, 33–34, 92–99, 102–12, 148, 368, 479, 482, 484–90, 494–98, 596. See also customary international law, sources of evolution of, 367, 368, 370, 373–74 as federal common law, 244–45, 247–52, 255, 289, 291–92, 353–54, 359, 362–63, 365–66, 368–70, 374–75, 378, 484–87, 493, 500–4, 597, 598. See also federal common law as general common law, 10–11, 27–32, 91, 114–17, 226–34, 236–40, 244, 289–91, 353–54, 374, 594–95, 597, 598, 604. See also general common law incorporation into domestic law, 245–49, 251–54, 431, 483–84, 493, 500, 566. See also customary international law, as law of the United States and individual rights. See individual rights, and customary international law and inherent powers doctrine. See inherent powers doctrine and interstate disputes. See interstate disputes and later-in-time rule. See later-in-time rule as law of the United States, 8, 31–32, 91, 102, 112–20, 244–45, 251–54, 289–95, 368–69, 374–75, 481, 483–84, 493, 594–95, 597–98. See also federal jurisdiction legislative implementation of, 34, 431 and natural law, 8–9, 35–36, 91–100, 353, 481–82, 488–90, 492, 596–97, 604. See also natural law and nonstate actors, 370–73, 434 and positivism, 35–36, 91–99, 109–12, 289–90, 353, 368, 481–82, 484–87, 490, 494–95, 497, 498, 596–97, 604. See also international law positivism; positivism and the President, 34–35, 50, 91, 120–22, 240–43, 290, 376–78, 565, 566, 577–78, 596, 598. See also President, power to violate customary international law and private property rights, 28, 34, 359–66 sources of, 8–9, 33–34, 92–99, 102–12, 479, 494–98. See also customary international law, evidence of and state law, 10–11, 30–31, 91, 118–20, 244–51, 255, 595, 597. See also federal preemption of state law; Supremacy Clause and state practice, 168, 238–40, 482, 486–90, 493–96, 596. See also customary international law, evidence of treaties as evidence of, 495, 497, 596

610 Daniel, Peter (Associate Justice), 44 dead hand problem, 491–92 death penalty. See capital punishment Declaration of Independence, 7, 168 declaration of war, 40–41. See also Congress, declarations of war deference. See judicial deference Define and Punish Clause, 12, 13, 147–48, 256, 516 de Longchamps, Charles, 11, 26, 369 democratic deficit, 490 denaturalization, 435–36 deportation of aliens, 343, 408–9 Detainee Treatment Act of 2005, 447 detention. See enemy aliens; enemy combatants; habeas corpus Dicey, Albert Venn, 543 direct application of treaties. See treaties, direct application of direct application of customary international law. See customary international law, direct application of discrimination against aliens, 60, 61, 68–70, 134–35, 155, 339–41, 348. See also Chinese immigration; Equal Protection Clause domestic law positivism, 232–33, 290–91, 482. See also international law positivism; natural law; positivism Douglas, William (Associate Justice), 222, 325–27, 340, 344, 364 Drug Enforcement Agency, 482 dualism, 117, 526–28 Due Process Clause, 151–52, 225, 236, 297–98, 304, 305, 407–8, 431, 435, 449, 472, 477–78, 491–92, 568, 579–80, 583, 603 Edwards, Harry (Judge), 370–71 Eighth Amendment, 346, 380, 410–14, 428, 435, 436, 445, 474, 509, 513, 525, 604 Eisenhower, Dwight (President), 349, 421 Eleventh Amendment, 156, 160, 304. See also sovereign immunity enemy aliens, 41, 277–78, 324, 355, 562–63, 568–69, 578, 603. See also enemy combatants; war on terror; war powers enemy combatants, 277, 447, 562, 568, 578, 579, 583, 600. See also enemy aliens; war on terror; war powers enemy property, 34–35, 40–41, 120–22, 131–33, 142–46, 161, 182–83, 275–76, 569–70, 579, 585, 603. See also property rights, seizure of property in war; war powers enemy status, 571–72, 603 enforcement of judgments. See foreign judgments, enforcement of enumerated powers doctrine, 153, 162, 184, 300, 302–4, 306–7, 601. See also Congress, Article I powers

Index equal footing, 139–40, 358 Equal Protection Clause, 341, 428, 431. See also discrimination against aliens European Commission, 533 European Court of Human Rights, 509 European Union, 537, 539 exclusionary rule, 474, 515. See also Fourth Amendment executive agreements, 288, 591–92. See also sole executive agreements and presidential power, 293, 332, 334–35, 424–25. See also President, rise of executive power after World War I and state law. See federal preemption of state law; sole executive agreements, and state law and treaties. See also treaties, and executive agreements executive power. See President, executive power executory and executed treaties, 22 expansionism, 309–13 expropriation, 353, 359–66, 432, 598. See also property rights; Takings Clause extradition, 42, 68, 71, 110, 327–28 rule of specialty, 68 extraterritorial application of statutes, 38–39, 101–13, 124–29, 161, 259–69, 283, 329–31, 380–93, 438–39, 445–46, 531, 533–45, 547–53, 556, 588, 599–600. See also statutory interpretation extraterritorial application of the Constitution, 149–50, 161, 269–72, 284, 345, 562, 568–69, 578, 580, 583, 602–3. See also constitutional interpretation Federal Arbitration Act, 348, 350–51 federal common law, 27, 247–49, 251–52, 256, 353–54, 357, 359, 365–66, 431–33, 482, 483, 489, 500–4. See also customary international law; general common law federal habeas corpus. See habeas corpus federalism, 41–43, 246, 292–93, 513–14, 601. See also Eleventh Amendment; enumerated powers doctrine; Tenth Amendment Federalist Papers, The, 456 federal jurisdiction, 12, 125–26, 230, 246, 368–69, 374–75, 553. See also Constitution of the United States, Article III over customary international law claims, 31–32. See also customary international law, as law of the United States over treaty claims, 15, 19 federal power, growth of, 225, 256–311 Federal Power Commission, 351 federal preemption of state law, 12–13, 305. See also Supremacy Clause

Index by customary international law, 118–20, 230–34, 250–53, 363, 595. See also customary international law, and state law by executive agreements, 249, 287–88, 444, 462, 592 by general common law, 226, 228, 230–33 by treaties, 12–14, 67, 85–87, 320, 427, 455–57, 465, 476–77, 589, 594 Federal Tort Claims Act, 388–89, 474 Field, David Dudley, 174 Field, Stephen (Associate Justice), 56, 77–78, 105, 125–26, 129, 145, 149–51, 153–55, 163, 172, 183–84, 228, 477 Field code, 308 Fifth Amendment, 144–46, 149–50, 153–55, 183, 275–77, 296, 351, 474, 562, 579, 602, 603. See also Due Process Clause; Takings Clause First Amendment, 297, 410, 428 Florida treaty with Spain (1819), 21–23, 47, 48 foreign affairs powers. See Congress, foreign affairs powers; President, foreign affairs powers foreign affairs preemption, 340–41. See also federal preemption of state law foreign commerce preemption, 341–42 foreign judgments. See also comity recognition of, 101–3, 234 enforcement of, 101–3 foreign law in constitutional interpretation. See constitutional interpretation, use of foreign law Foreign Sovereign Immunities Act, 330, 365, 373, 380, 388, 401–6, 446–47, 552. See also sovereign immunity, foreign sovereign immunity commercial activities exception, 404–6 immunity of individual officials, 405–6 foreign sovereign immunity. See Foreign Sovereign Immunities Act; sovereign immunity, foreign sovereign immunity Foreign Trade Antitrust Improvements Act, 533, 555, 557 forum non conveniens, 100 Fourteenth Amendment, 150–52, 272–75, 297–98, 304, 344, 412, 503, 604. See also Due Process Clause; Equal Protection Clause Fourth Amendment, 474, 602. See also exclusionary rule Frankfurter, Felix (Associate Justice), 238, 273, 345, 411, 424 Franklin, Benjamin, 172 French Revolution, 573 Fuller, Melville (Chief Justice), 89, 92, 108–9, 119–21 Full Faith and Credit Clause, 305 general commercial law, 27–28, 114, 228, 244–46, 503. See also commercial law; general common law; international commercial law

611 general common law, 27–28, 226–34, 243–44, 292–93, 303, 353–54, 500–4, 596. See also customary international law, as general common law; general commercial law general maritime law, 90, 92, 94–98, 106–7, 113–16, 130–31, 231–33, 237, 239, 244, 248–54, 326. See also admiralty law; general common law; maritime law Geneva Conventions, 174, 322–25, 355, 422–23, 428, 429, 447, 451, 563, 587 Common Article 3, 563, 572–74, 578, 583, 593, 600 Genocide Convention, 372 Ginsburg, Ruth Bader (Associate Justice), 508, 519, 548–52 globalization, 419, 499, 521, 539–40, 545, 548 Goldberg, Arthur (Associate Justice), 343, 507, 508 good faith canon in treaty interpretation. See treaty interpretation, canon of good faith Gray, Horace (Associate Justice), 83, 98–99, 101–4, 107–9, 111–13, 116–17, 120–22, 126, 150–51, 153–55, 158–59, 163, 172, 184–85, 226, 240–41, 301 Grier, Robert (Associate Justice), 93, 142–44 Grotius, Hugo, 8, 62, 91, 130, 168, 382, 577 Guantánamo Bay, 447, 562, 568, 570, 576, 581, 583, 602, 603. See also enemy combatants; war on terror habeas corpus, 68–71, 140, 354–55, 377, 431, 447, 453–54, 458–59, 473, 475–76, 562–63, 571, 579, 580, 594, 602–3. See also enemy aliens; enemy combatants Hague Convention on Child Abduction, 444 Hague Conventions of 1907, 237, 355 Hague Evidence Convention, 348 Hague Service Convention, 348 Hall, William, 359 Halleck, Henry, 106, 107 Hamilton, Alexander, 10, 13, 34, 185–86, 283, 499 Hand, Augustus (Judge), 264 Hand, Learned (Judge), 266–67, 391 Harlan, John Marshall (Associate Justice), 108 Harlan, John Marshall II (Associate Justice), 322, 340, 344–45, 359–63, 368, 431–33 harmonization of treaties and statutes. See Charming Betsy canon, and treaties hegemony, 541–45 Henfield, Gideon, 26–27 Hickenlooper Amendment, 363, 378 Holmes, Jr., Oliver Wendell (Associate Justice), 228–30, 232–33, 240–41, 243–44, 246, 252–55, 261–65, 286–87, 295–96, 391, 541, 542 Holocaust. See Nuremberg Tribunal Huber, Ulrich, 29–30, 38 Hughes, Charles Evans (Chief Justice/Associate Justice), 452

612 Hull, Cordell (Secretary of State), 279 human rights litigation. See Alien Tort Statute; international human rights immigration, 48, 134–35, 140, 154–55, 184–85, 301–2, 311, 339, 436, 602. See also Chinese immigration; inherent powers doctrine; plenary power doctrine Immigration and Nationality Act, 329, 388 Immigration and Naturalization Service, 376 imperialism, 541–46 import duties, 140 incorporated territories, 271–72, 296–97, 305. See also unincorporated territories Indian Commerce Clause, 306 individual duties and international law, 356. See also Nuremberg Tribunal individual rights, 14–16, 418 and constitutional interpretation, 272–75, 300, 320, 427, 435–37. See also constitutional interpretation, use of international law to protect individual rights and customary international law, 50, 133, 169, 236, 257–58, 431 and treaties, 14–16, 50, 63–64, 66–73, 81–82, 88, 136–37, 149–50, 169, 286, 297, 319, 325, 338–46, 352, 420–22, 425–29, 452, 455, 459–60, 466, 589. See also treaty interpretation industrialization, 308 inherent powers, executive, 279–83, 601–2, 604. See also President, rise of executive power after World War I inherent powers doctrine, 103, 135, 152–55, 162, 183–86, 271, 280–84, 301–7, 380, 408–12, 436–37, 512, 590, 601–2, 604. See also Congress, rise of congressional power after Civil War Institut de Droit International, 308 inter-branch cooperation, 50–51 internal affairs doctrine. See maritime law, internal affairs doctrine international arbitration, 128, 452, 461–62 international commercial law, 228, 235, 244–46, 537, 597. See also commercial law; general commercial law; general common law International Court of Justice, 362, 365, 400, 443–44, 452–55, 457–59, 463, 465, 469–70, 475–76, 495, 587, 594 International Covenant on Civil and Political Rights, 422, 428, 467, 497–98, 527, 528 International Covenant on Economic, Social and Cultural Rights, 422 International Criminal Court, 498 international human rights, 339, 353, 357, 366–73, 376–78, 380, 411, 414, 416–18, 421–22, 425–29, 433–35, 437–45, 479, 487, 490, 494,

Index 496–98, 500, 505, 521, 523–29, 598. See also Alien Tort Statute; Nuremberg Tribunal rise after World War II, 380. See also Nuremberg Tribunal International Labor Organization, 273, 467 international law. See customary international law; treaties international law, use in constitutional interpretation. See constitutional interpretation, use of customary international law international law, use in statutory interpretation. See Charming Betsy canon international law positivism, 100, 109–12, 226–27, 238–40, 289–90, 482, 487–90, 596. See also domestic law positivism; natural law; positivism international tribunals, 467–68, 522 delegation of authority to, 463–64, 467–68, 470 domestic effect of judgments, 454, 455, 461, 463–64, 470, 476–77 and transnational judicial dialogue, 524–25 interstate disputes, 31, 41–42, 104, 229–31, 239–40, 247–48, 250, 289, 293–94, 353, 357–59, 429–30, 503, 595, 597 Iran hostage crisis, 334 Iran-U.S. Claims Tribunal, 462 Iredell, James (Associate Justice), 14, 18, 22, 24–25, 373 Jackson, Robert (Associate Justice), 266, 354–56, 424, 431, 462, 511, 513 Jay, John (Chief Justice), 7, 10, 18, 25, 41, 452, 456, 464 Jay Treaty, 46, 64, 185, 196, 461 Jefferson, Thomas (President), 27, 36, 499, 545 Jessup, Philip, 246, 251, 253, 291, 362–63 Jim Crow laws, 317 Johnson, Andrew (President), 183 Johnson, William (Associate Justice), 42 Jones Act, 381–84, 438 judicial activism, 517, 563 judicial avoidance, 126–28, 465, 468–70, 472–75, 477 judicial capacity, 553, 556–57 judicial deference to the executive branch, 50, 130, 238, 361, 364, 396–551, 572–73 to the political branches, 321–31, 420, 422–24, 440, 441, 483, 525 rise in twentieth century, 299–300 in treaty interpretation. See treaty interpretation, canon of deference to executive judicial imperialism, 559, 587–88 judicial passivity, 449, 472–78 judicial power, 18, 293–94. See also Constitution of the United States, Article III

Index and customary international law, 246, 253–54, 360–63, 366, 487, 493, 500–4. See also customary international law and foreign affairs, 18, 45–47, 249–50, 367, 369–70, 486, 534–38, 559, 573–74, 577 and ideology, 500 and treaties, 59, 288–89, 321–31, 469–70. See also self-executing treaties; treaties, judicial enforcement of; treaty interpretation, presumption against judicial enforcement in wartime. See judicial role, in war on terror; war powers judicial role internationalist conception, 525 nationalist conception, 525 in war on terror, 559, 579–83, 586 Judiciary Act of 1789, 19, 23, 25, 27–28, 30, 227, 247, 367, 444, 502 jurisdiction. See federal jurisdiction jury trial, Sixth Amendment right. See Sixth Amendment, right to jury trial Kaufman, Irving (Judge), 368, 375 Kennedy, Anthony (Associate Justice), 509–10, 514, 523–28, 549, 602 Kent, James, 80, 81, 106 Korean War, 332, 602 Lansing, Robert (Secretary of State), 312 later-in-time rule, 141, 285, 399–400, 601, 604 and customary international law, 32–33. See also Charming Betsy canon, and customary international law exception for vested rights, 59, 75–76, 136–37, 590 origins of, 73–76, 589–90 and treaties, 18–19, 56, 58–60, 73–76, 88, 133–41, 193, 399–400, 429, 441, 457, 589–90. See also Charming Betsy canon, and treaties Lauterpacht, Hersh, 240, 356 law merchant. See commercial law; international commercial law law of the sea. See general maritime law; maritime law; prize law Lawrence, Thomas, 80, 106 law of nations. See customary international law laws of war, 131–33, 142–47, 174, 182–83, 191, 235, 242, 255–56, 275–79, 296, 323, 353–57, 429–31, 559, 561, 564–87, 600, 603. See also enemy aliens; enemy combatants; war powers use to enhance presidential power, 584–86, 596 League of Nations, 279 legal realism, 489 lex mercatoria. See commercial law; international commercial law lex posterior, 18–19 lex specialis, 18, 19, 96, 110

613 liberal interpretation, canon of. See treaty interpretation, canon of liberal interpretation Lieber, Francis, 173, 174 Lieber Code, 174, 431 Lincoln, Abraham (President), 92, 122, 132, 142, 172, 183, 585 Litvinov Agreement, 220 London Charter. See Nuremberg Tribunal Lord Mansfield, 94 Lord Stowell. See Scott, William Louisiana Purchase, 21 Madison, James (President), 12, 27, 34, 152 Magna Carta, 472, 478 manifest destiny, 47–48, 60, 270 Marcy, William (Secretary of State), 466 marine insurance, 27–28 maritime law, 27–28, 94–98, 106–7, 114–16, 119, 130–31, 231–33, 381–438, 503, 594–95. See also admiralty law; general maritime law; prize law internal affairs doctrine, 101, 125, 384–86, 549, 551 Marshall, John (Chief Justice), 14–15, 21–23, 25–26, 28–29, 32–36, 39–40, 65, 76, 82, 92, 97, 105, 121, 156, 170–71, 259, 280, 320, 452, 488, 539, 543, 590, 599 Marshall, Thurgood (Associate Justice), 330, 334 Martens, Georg Friederich von, 43, 130 Matthews, Stanley (Associate Justice), 131 McKenna, Joseph (Associate Justice), 108 McKinley, William (President) Mexican-American Claims Commission, 461–62 Mexican-American War, 47, 109, 215 military commissions, 146, 255, 277, 323–24, 354–55, 447, 583, 587, 600, 603. See also enemy combatants; war on terror; war powers Military Commissions Act of 2006, 447 Miller, Samuel (Associate Justice), 158–59, 184 Minton, Sherman (Associate Justice), 333, 343, 345 Monroe Doctrine, 60 Moore, John Bassett, 109, 359 Murphy, Frank (Associate Justice), 340, 355 Napoleonic Wars, 45, 47, 99, 109, 111 nationalism, 309–13 Nationality Act of 1940, 435 National Labor Relations Act, 384–438 Native Americans, 28–29, 47–48, 57, 59–62, 67–68, 82, 135–40, 184, 301, 306, 312, 351 doctrine of discovery, 28–29, 47–48 natural law, 35–36, 62–65, 90–97, 167–73, 272, 275, 353, 355–57, 495, 543, 546. See also positivism Necessary and Proper Clause, 153, 303. See also Congress, Article I powers; enumerated powers doctrine

614 Nelson, Samuel (Associate Justice), 143, 183 neutrality, 24, 26–27, 45–46, 564, 566, 569–70, 573, 574 Neutrality Act of 1794, 27 neutrality proclamation, 45 New Deal, 318, 418, 436, 501 Newman, Jon (Judge), 372 New York Convention, 348, 350–51, 554 Nixon, Richard (President), 418, 429 nondelegation doctrine, 467–68 non-self-executing declarations, 421–22, 426, 429, 466, 500, 593 non-self-executing treaties, 16, 20–23, 56, 76–80, 88, 286, 288, 324, 421–22, 426, 428, 444, 449, 459–61, 468, 470, 477–78, 497, 590–91, 593–94. See also self-executing treaties non-state actors, 571–72 Nuremberg Tribunal, 318, 327, 353–57, 366, 431. See also international human rights Obama, Barack (President), 576 Office of the Solicitor General, 335 opinio juris, 103, 487, 488, 495, 498 Oppenheim, Lassa, 359 originalism. See constitutional interpretation, originalism overseas military bases, 334–35, 345 Panama Canal, 309 Paterson, William (Associate Justice), 16, 24 peace treaty with Britain (1783), 8–11, 13, 18, 46, 456 persistent objector rule, 488 personal jurisdiction, 151–52, 236, 289, 299, 310, 407–8, 503, 597. See also Due Process Clause Phillimore, Robert (Sir), 106, 107, 110, 359 piracy, 32–34, 39, 225, 496, 534 Piracy Act, 33–34 Pitney, Mahlon (Associate Justice), 232, 248, 252 plenary power doctrine, 602. See also inherent powers doctrine political questions, 18, 35, 333–34, 369 positivism, 35–36, 62–65, 90–92, 97–99, 167–73, 228–29, 246, 306–7, 353, 355–57, 430, 481–82, 487–90, 543, 546. See also domestic law positivism; international law positivism; natural law Powell, Lewis (Associate Justice), 334, 364 preemption. See federal preemption of state law; Supremacy Clause President. See also Constitution of the United States, Article II Commander-in-Chief power, 34–35, 93, 142–44, 219, 242, 564–65, 577–78, 582–84, 586. See also war powers duty to implement treaties, 194

Index executive agreements. See executive agreements executive power, 332–33, 420, 511 foreign affairs powers, 238, 281–82, 290, 306, 332–33, 424–25, 601 power to implement treaties, 593 power to interpret customary international law, 120–22, 126–28, 596. See also customary international law, and the President power to interpret treaties, 84–85, 337–38. See also treaties, as constraint on executive power; treaty interpretation, canon of deference to executive power to make treaties, 195, 331–32 power to terminate treaties, 333 power to violate customary international law, 34–35, 91, 120–22, 126–28, 242–43, 290, 377, 566, 596. See also customary international law, and the President; violations of international law rise of executive power after World War I, 281–82, 284, 287–89, 296, 299–300, 332–33, 592, 593, 598, 601–2, 604 as sole organ of nation in foreign affairs, 281–82, 601. See also President, foreign affairs powers price fixing, 553–54, 556 prisoners of war, 354, 571. See also enemy combatants; war powers privateers, 19, 23–26, 33, 37–534. See also admiralty; piracy; prize law private international law, 92, 94, 102, 352. See also conflict of laws; general commercial law; general maritime law; maritime law private right of action, 15, 369–71, 375, 461, 483, 486, 501, 555. See also individual rights, and treaties; treaties, judicial enforcement of Prize Act, 33 prize law, 24–25, 97, 110–12, 132–33, 225, 226, 234–35, 247, 534, 565–66, 569–71, 573–74, 579, 582, 584–85, 594–95. See also admiralty law; general maritime law; maritime law procedural default rules, 70–71, 452–55, 457–59, 474, 476 procedural due process, 449, 472, 477–78. See also Due Process Clause Progressives, 501 property rights. See also expropriation seizure of property in war, 23–35, 40–41, 46–47, 92, 120–22, 131–33, 142–46, 182–83, 235, 237–38, 241–42, 585, 596, 603. See also enemy property; war powers treaty protection of, 15–16, 20–21, 48, 59, 67–68, 71–73, 85–86, 136–37, 466. See also individual rights, and treaties; treaties, judicial enforcement of Pufendorf, Samuel von, 8, 577 Quasi-war with France, 18, 46, 176, 570, 584

Index racism, 308–13, 339 Randolph, Edmund (Secretary of State), 17 Reagan, Ronald (President), 376, 424, 429 Reconstruction, 309, 311 recognition of judgments. See foreign judgments, recognition of Reed, Stanley (Associate Justice), 266, 333 Refugee Act of 1980, 394, 439, 440 Rehnquist, William (Chief Justice/Associate Justice), 330, 334, 418, 440, 501, 541 remedies. See individual rights, and customary international law; treaties, judicial enforcement of Republican Party, 27 Restatement (Second) of Foreign Relations Law, 363 Restatement (Third) of Foreign Relations Law, 363, 375, 391–93, 496–98, 536 Revolutionary War, 45, 564 Rice, Condoleezza (Secretary of State), 454 rise of congressional power. See Congress, rise of congressional power after Civil War rise of presidential power. See President, rise of presidential power after World War I Roberts, John (Chief Justice), 451, 452, 464 Rome Statute, 498 Roosevelt, Eleanor, 421 Roosevelt, Franklin (President), 220, 255, 279, 318, 345, 354 Root, Elihu (Secretary of State), 173, 261–62, 308 rule of decision, international law as. See customary international law, direct application of; treaties, direct application of rule of law, 473–74, 564 Rutledge, John (Chief Justice), 24 Rutledge, Wiley (Associate Justice), 323, 340 Scalia, Antonin (Associate Justice), 359, 364, 376, 392–93, 404, 413–14, 439, 502, 513, 539, 547–52, 599, 604 Scott, William (Sir), 103, 111, 112, 536, 537, 543, 574 Securities Exchange Act, 350, 548, 550 seizure of property. See property rights, seizure of property in wartime self-executing treaties, 20–23, 76–80, 193, 286, 320, 428, 444, 459–61, 590–91. See also non-self-executing treaties; treaties, direct application of separation of powers, 288–89, 360, 422, 431–33, 575 between judiciary and political branches, 562–63, 582. See also judicial power Sherman Act, 259–65, 350, 391–93, 439, 533, 537, 541, 556–58. See also antitrust law, extraterritorial application of Shipowners’ Liability Convention, 326 Shiras, George (Associate Justice), 105

615 Sixth Amendment, 145–46, 149–50, 155, 183, 277, 344–45, 427, 468, 474, 602, 603 right to counsel, 580 right to jury trial, 427, 468, 602, 603 slavery, 43–44, 48–49, 170–71, 516, 534, 543–44 slave trade, 36, 48–49, 170–71, 373, 467–69, 534, 536–37, 543–46 Sohn, Louis, 357 sole executive agreements, 194, 287–88, 592, 602, 604. See also executive agreements and Presidential power, 299, 306, 332, 334–35, 592 and state law, 249, 293, 592. See also federal preemption of state law sole organ. See President, as sole organ of nation in foreign affairs Sotomayor, Sonia (Associate Justice), 507–8 Souter, David (Associate Justice), 392, 496–97 sovereign immunity, 155–61, 401–6 federal sovereign immunity, 158–60, 376, 474 foreign sovereign immunity, 39–40, 46, 156–58, 233–34, 237–38, 243, 246, 252, 365, 376, 401–6, 446–47, 597, 598, 602, 604. See also Foreign Sovereign Immunities Act restrictive theory of, 401–3 state sovereign immunity, 41, 160–61, 304, 473. See also Eleventh Amendment sovereign interests, 548–49 sovereign powers. See inherent powers doctrine sovereignty, 152–56, 159–62, 257, 262–63, 268–69, 271, 280–83, 295–96, 300–1, 358, 512, 543–44. See also inherent powers doctrine Spanish-American War, 88, 107, 110, 121, 132, 191, 200, 220, 235–36, 241–42, 269–70, 275–76, 307, 574, 585, 597 State-versus-State disputes. See interstate disputes status of forces agreements (SOFAs), 324–25, 344–45, 427 statutory interpretation. See also Charming Betsy canon and customary international law, 10–11, 37–38, 125–33, 267, 358, 377, 380–86, 393, 458, 485–86 deference to administrative agencies (Chevron deference), 394, 439, 440 and international relations, 536–38, 547–49, 552 presumption against extraterritoriality, 38–39, 124–29, 260–69, 295–96, 380, 381, 393, 438–40, 446, 538–41, 545, 547–52, 599–600. See also extraterritorial application of statutes presumption against implied repeals, 74–75, 399. See also Charming Betsy canon, and treaties and treaties, 18–19, 323–25, 329–31, 401, 451, 458–59. See also later-in-time rule use of international law generally, 124–25, 141, 161, 167, 358, 380–441, 446, 531, 534–38, 547–52, 599–601, 605

616 statutory interpretation (cont.) use of international law to augment governmental power, 133, 257, 600–1 use of international law to constrain governmental power, 133, 163, 567, 600–1 use of international law to protect individual rights, 133, 136–37, 163, 439–40, 451 Stevens, John Paul (Associate Justice), 329, 334, 364, 413, 551, 576 Stewart, Potter (Associate Justice), 344, 350, 507 Stone, Harlan (Chief Justice/Associate Justice), 221, 249, 266, 293 Story, Joseph (Associate Justice), 15, 16, 25, 27–30, 32–36, 38, 40, 81, 92, 100, 114, 116, 151, 170–71, 227–28, 250, 374, 478, 488, 496, 540 Strong, William (Associate Justice), 97–98, 145–46, 182–83 Submerged Lands Act, 348–49, 358 substantive due process, 491–92. See also Due Process Clause Supremacy Clause, 12–15, 76, 117, 201, 207, 245, 250, 289, 304, 305, 321, 352, 363, 456–57, 460, 476–77, 589. See also federal preemption of state law supremacy of Constitution over international law, 468–69 Suspension Clause, 563 Sutherland, George (Associate Justice), 194, 195, 242–43, 249, 279–83, 293, 601–2 Swayne, Noah (Associate Justice), 94, 114, 183 Taft, William H. (Chief Justice), 267, 452 Take Care Clause, 564. See also President Takings Clause, 153, 603. See also expropriation Taney, Roger (Chief Justice), 14, 29, 34, 38, 39, 42, 89, 92, 158, 311 Tate Letter, 401–3 Tenth Amendment, 282, 287, 294, 305, 591. See also enumerated powers doctrine; federalism territoriality, 38–39, 125, 146, 148–52, 161–62, 260–69, 295–96, 355, 407–8, 414, 535, 538–41, 545. See also extraterritorial application of the Constitution; extraterritorial application of statutes territorial waters, 357–58 terrorism, 371. See also war on terror thalweg, 239–40, 358 Thirteenth Amendment, 175 Thomas, Clarence (Associate Justice), 502, 519, 548–52, 576 Tokyo military tribunal, 354 Torture Victim Protection Act, 371, 378, 434 Trade Agreements Act of 1934, 332 Trading with the Enemy Act, 340 transnational judicial dialogue, 505, 523–27, 529 treaties

Index and Charming Betsy canon. See Charming Betsy canon, and treaties as constraint on executive power, 50, 290, 328–29, 331–35, 337–38, 589, 590, 592–94, 604–5. See also President, power to interpret treaties; President, power to violate treaties and criminal proceedings, 68, 327–28, 331, 473 direct application of, 13–16, 49, 55, 79–331, 346–52, 589, 592, 604, 605 as evidence of customary international law, 104–5 and executive agreements, 288 and federalism, 9–10, 13–14, 57–58, 86–88, 138–39, 286–87, 465–68, 591–92, 594. See also treaty power, scope of as federal law, 56, 57, 73–80, 193, 318–21, 345, 477. See also non-self-executing treaties; self-executing treaties and federal statutes. See later-in-time rule, and treaties; statutory interpretation, and treaties incorporation into domestic law, 526–28 and individual rights. See individual rights, and treaties; treaties, judicial enforcement of judicial enforcement of, 12–16, 49, 55, 66–73, 79–83, 88, 193, 285, 288–89, 318–31, 337–38, 346–52, 420–29, 443–44, 449, 452, 455, 459–60, 466, 468, 475–78, 572, 589–94. See also non-self-executing treaties; self-executing treaties later-in-time rule. See later-in-time rule legislative implementation of, 19–23, 56, 71–73, 76–80, 321–31, 346–52, 590 non-self-executing declarations. See non-self-executing declarations non-self-execution. See non-self-executing treaties reservations, 195, 426, 500, 528 self-execution. See self-executing treaties Senate consent, 195 as source of executive power, 319, 325, 331–35, 420, 424–25 and state law, 9–10, 12–15, 50, 56–58, 67, 85–88, 138–39, 193, 286–87, 319, 320, 338–46, 420–21, 427, 443–44, 455–58, 465, 589, 591–92, 594. See also federal preemption of state law; Supremacy Clause treaty cases, against government, 320, 352, 473, 592–94, 604–5. See also individual rights, and treaties; treaties, judicial enforcement of treaty cases, between private parties, 319–20, 352, 473, 592, 593. See also individual rights, and treaties; treaties, judicial enforcement of treaty interpretation, 16–18, 61, 80–85, 285–86, 591. See also Charming Betsy canon, and treaties canon of deference to executive, 17–18, 56, 84–85, 286, 288, 299–300, 319, 321, 332–38, 422–25, 563, 572–73, 578, 591–93. See also President, power to interpret treaties

Index canon of good faith, 16–17, 50, 56, 81–82, 88, 224, 285, 288, 335, 589, 592 canon of liberal interpretation, 16, 56, 81–82, 88, 205, 224, 285, 288, 297, 589, 592 deference to international tribunals, 444, 452, 454, 459, 462, 469–70 and the law of nations, 16, 80 presumption against judicial enforcement, 67, 288–594 reliance on foreign law, 80, 347, 350, 444 reliance on negotiating history, 80, 209 reliance on practical construction, 299 reliance on ratification materials, 80 textualism, 82–83 Treaty of Ghent, 45 Treaty of Guadalupe Hidalgo, 215 Treaty of Peace. See peace treaty with Britain (1783) treaty power, scope of, 286–87, 310, 591–92. See also federalism treaty termination. See also President, power to terminate treaties Truman, Harry (President), 332–33, 345, 354 Twiss, Travers (Sir), 106 Uniform Code of Military Justice, 344–45, 427, 579, 600. See also military commissions unincorporated territories, 271–72, 284, 296–97, 305, 602. See also incorporated territories United Nations, 307, 318, 368 United Nations Charter, 333, 339, 340, 420, 426, 428, 443, 454, 459–60, 464, 475–77 United Nations Convention on the Status of Refugees, 329, 390, 423, 439 United Nations General Assembly, 488, 494, 498 United Nations High Commissioner for Refugees (UNHCR), 394, 396, 439, 440 United Nations Participation Act, 459 United Nations Protocol Relating to the Status of Refugees, 394, 439 United Nations Security Council, 332 United States foreign policy, 1792 to 1815, 45–46 national identity, 505, 515–17, 523, 525–26, 529 national superiority complex, 521–22 as powerful state, 307, 309, 321, 416–18, 420, 422, 430–31, 435, 438, 441–536 rise as a global power, 59–62 as weak state, 307, 416, 430, 535–36 United States Constitution. See Constitution of the United States Universal Declaration of Human Rights, 339, 343, 411, 497, 507, 509 universal jurisdiction, 39 urbanization, 308 Uruguay Round, 342

617 Vattel, Emmerich de, 8–10, 16, 35, 42–44, 62, 80, 93, 147–48, 153–54, 163, 168, 359, 577, 596 vested rights. See later-in-time rule, exception for vested rights; property rights, treaty protection of Vienna Convention on Consular Relations, 328, 399–401, 429, 441, 443–44, 451, 453–54, 457–58, 464, 465, 469–70, 475–76, 594 Vietnam War, 326–27, 586 Vinson, Fred (Chief Justice), 333 violations of international law, 8, 141, 463 by Congress. See Congress, power to supersede customary international law; later-in-time rule judicial remedies for, 443–44, 449, 452–55, 459–60, 464–66, 469, 473–78, 594. See also customary international law, direct application of; judicial power, and customary international law; treaties, judicial enforcement of by the President. See President, power to violate customary international law by state governments, 9–12, 443–44, 453–58, 594. See also customary international law, as law of the United States; federal preemption of state law; treaties, and state law Waite, Morrison (Chief Justice), 64, 89, 92, 100, 110, 117, 147–48, 163, 452 war crimes, 323, 353–56, 372, 563, 603. See also Nuremberg Tribunal war criminals, 431, 562 warfare, changed circumstances, 571–72, 578 War of 1812, 38, 41, 44–47, 171, 176, 197, 309, 570, 574, 585 war on terror, 447, 559, 561, 564, 566, 571–78, 580–83, 586–87, 600–1, 605. See also enemy combatants; Guantánamo Bay; military commissions war versus crime model, 559, 575–77, 579–81 war powers, 18, 275–79, 561, 562, 576. See also laws of war Congress, 143–46, 255–56, 276–77, 565, 582, 584, 587 judicial power in wartime, 18, 45–47, 133, 354, 562–66, 569–73, 577–79, 582–86 President, 34–35, 93, 120–22, 133, 142–44, 354, 564–68, 577–78, 582–87 Warren, Earl (Chief Justice), 410, 417, 418, 426, 442, 500, 501, 604 Warsaw Convention, 347, 349, 444 Washington, Bushrod (Associate Justice), 29 Washington, George (President), 26–27, 45, 431, 545, 564, 566, 573 westward expansion, 47–48, 301 Wharton, Francis, 109 Wheaton, Henry, 80, 106, 110, 130, 151, 183, 359 White, Byron (Associate Justice), 334, 344, 361, 362, 412–13, 431–33, 437, 507, 517

618 White, Edward (Chief Justice/Associate Justice), 271–72, 304, 312, 478 Wilson, James (Associate Justice), 26, 41, 373 Wilson, Woodrow (President), 57, 200, 312 Wirt, William (Attorney General), 467 Wolff, Christian, 35

Index World Trade Organization, 463 World War I, 89, 91, 192, 225, 235, 305, 307, 356, 372, 586 World War II, 191, 225, 255, 291, 307, 352, 353, 372, 416, 422, 431, 500, 521, 536, 562, 568, 574, 586, 589, 599, 604 Wright, Quincy, 356

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