Vol. 106 Issue 6

This Article explores the Supreme Court’s inconsistent use of prescriptive inferences to justify the creation of federal common law in areas regulated by the law of nations. On the one hand, the court has employed an inference of lawmaking power from an unadorned grant of jurisdiction in the case of admiralty suits and tort claims brought by aliens and based on the law of nations. It has not done so with respect to the law merchant and private international law, even though jurisdictional grants to the federal courts exist. The Article shows that the modern development of the law merchant and private international law as State law, subject to federal legislative overrides as needed, demonstrates why prescriptive inferences in the field of foreign relations are unnecessary and perhaps even harmful.

For political and cultural reasons that go beyond the boundaries of this forum, many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ensure that the United States complied with its (or their) treaty obligations and the law of nations that was arguably the most important, and the most consensual, reason for the drafting and ratification of the new Constitution. That imperative shaped the structure outlined in the text, as well as much of the way that judges, executive officials, and even legislators interpreted and administered the Constitution during the first generation of the federal government. The result was a government designed to interact productively with the law of nations. Some of those interpretations, and some aspects of federal administration, became enormously controversial and generated early partisan divisions. But the basic premise—that the law of nations was the law of the land—proved durable, creating a tradition of international “law-mindedness” that deserves more historical investigation than it has so far received. The result is not just a scholarly lacunae. Among many lawyers today, the Founders’ conception of the central position of the law of nations in the American legal order is even less appreciated than their cosmopolitan outlook.

In offering a corrective to this forgetfulness, Professors Anthony Bellia and Bradford Clark, in The Law of Nations and the United States Constitution, make an important contribution to the ongoing dialogue over the Founding. Nonetheless, in our view, the legal theory that Professors Bellia and Clark offer downplays, misses, or misunderstands crucial features of the pertinent history, especially why and how the Founders struggled to interweave the law of nations into the Constitution. These errors and elisions are important, in part for purely academic reasons, bearing on the extent to which their approach accurately portrays a foundational period in U.S. constitutional history. They are also important, however, because they lead Professors Bellia and Clark to reach some sound, but also some unsound, conclusions about important issues of constitutional law.

This Article explains what the law of nations meant at the time the United States was established and how it interacted with the original U.S. Constitution. The “law of nations” was not only a historical term for modern customary international law, it (1) was sometimes a broad term for all inter-national law, including conventions or treaties—the “conventional” law of nations; (2) included principles of domestic law perceived to be shared by all civilized nations; (3) was a source of the U.S. law of federalism, given the early American view that the states retained residual sovereignty beyond what was conferred on the new general government by the Constitution; and (4) was perceived in part as unwritten natural law. The Americans who adopted the Constitution were keenly aware of their place in the world as a militarily weak new state in need of peace and trade with the European powers for survival, and thus eager to comply with the law of nations—the intramural rules of the European world order. They recognized that the judicial branch could play an important role in advancing the new nation’s inter-national acceptance and survival by judicious deployment of the law of nations as an instrument of U.S. foreign policy, which is why eight of the nine constitutional grants of judicial power in Article III implicated the law of nations. The law of nations was the original federal common law.

The federal common law of foreign relations has been in decline for decades. The field was built in part on the claim that customary international law is federal common law and in part on the claim that federal judges should displace state law when they conclude that it poses difficulties for U.S. foreign relations. Today, however, customary international law is generally applied based upon the implied intentions of Congress, rather than its free-standing status as federal common law, and judicial evaluation of foreign policy problems has largely been replaced by reliance upon presidential or congressional action, or by standard constitutional analysis.

Two traditional areas of federal common law–immunity and the act of state doctrine–are alive and well doctrinally. Their status as federal common law is somewhat unsteady, however, because the Court has not provided a convincing account of why these two topics should be governed by federal common law, and because the traditional foundation for federal common law has eroded. Anthony Bellia Jr. and Bradford Clark have argued in The Law of Nations and the United States Constitution that the Constitution itself requires courts to apply customary international law in these two areas, but their argument fails to convince. A better approach is to justify federal common law as necessary to give effect to the very closely-related statutory framework governing foreign sovereign immunity, and because judicial lawmaking is also cabined by the content of customary international law and by some actions of the executive branch. The federal common law of foreign relations does have a future, but it depends neither upon the status of customary international law as federal common law nor upon judicial decision-making about the deleterious effect of state law upon U.S. foreign policy.

Our goal here is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. The first question is whether the Constitution adopted the law of nations (or some subset of it) as the supreme law of the land. This fundamental question has profound implications for the proper role and status of customary international law in the U.S. federal system. The second question is whether the Constitution’s allocation of certain powers to the political branches of the federal government has any bearing on the power or obligation of federal courts to apply the law of nations. Resolution of this question is particularly important if one concludes, as we do, that the Constitution did not adopt the law of nations itself as supreme federal law. The recognition power—along with other foreign relations and war powers that the Constitution allocates to the political branches—can only be understood by reference to background principles of the law of nations. In various cases over time, the Supreme Court has upheld the Constitution’s allocation of these powers by respecting the rights of foreign nations under the law of nations.

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution, that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. This Article argues that the book is inconsistent in its approach to changes in customary international law, embracing some but rejecting others. This Article also shows that a full account of the changes in customary international law undercuts the book’s two constitutional arguments.

Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law of the United States within the meaning of Articles III or VI of the Constitution, and so does not serve as a basis for federal question jurisdiction or override contrary state law. Under the original understanding, the Constitution does not confer the protections of the international law of state-state relations on either foreign states or governments that have been recognized as such by federal political actors. Congress may confer those protections by statute, but in the absence of statute or treaty, they rest on general law. The Constitution’s text indicates that the laws of the United States referred to in Articles III and VI consist entirely of federal statutes. The Federal Convention’s drafting process indicates that members of the convention had that understanding of the text they produced. That process also indicates that the drafters probably understood the laws referred to by the Take Care Clause of Article II to consist of federal statutes. Prominent figures in the ratification debates treated Articles III and VI as using the term “laws of the United States” to refer to statutes. The First Congress drafted the Judiciary Act of 1789 on the assumption that the laws of the United States referred to in Articles III and VI were federal statutes. During the 1793 prosecution of Gideon Henfield for non-statutory criminal violations of the United States’ neutrality, a number of leading figures took the position that the federal courts could entertain prosecutions under unwritten law. It is unlikely, however, that any of them meant to assert that the law of nations was law of the United States within the meaning of Articles III or VI.

Modern commentators have advanced various theories of the Constitution’s original relationship to the law of nations, ranging from the view that the Constitution fully incorporated the law of nations as U.S. federal law to the opposite view that the law of nations has no status in U.S. domestic law until incorporated by Congress pursuant to its define-and-punish power. This Article defends an intermediate position based on the Constitution’s text and historical background. First, it argues that the law of nations was not supreme over state law nor the basis of federal court jurisdiction under the Constitution’s original meaning. In particular, the text’s distinct treatment of treaties—which it expressly makes part of supreme law and the basis of federal jurisdiction—strongly implies a different status for unwritten international law. The Constitution’s framers confronted parallel problems of states violating U.S. treaties and states violating unwritten international law. But in drafting the Constitution they did not provide parallel solutions. This indicates a distinct approach for unwritten international law, requiring action by Congress (or the treaty-makers) to convert it into supreme domestic law. Second, however, this essay argues that the unwritten law of nations could be a rule of decision for U.S. courts with appropriate jurisdiction if it did not conflict with other domestic law. English and American courts prior to the Constitution routinely used the law of nations as a rule of decision, and there is no reason to suppose that the federal courts’ “judicial Power” granted by Article III did not include this traditional authority. Moreover, U.S. courts in the immediate pre-ratification period routinely used the law of nations as a rule of decision without objection. Thus under the Constitution’s original meaning the law of nations was part of domestic law, but it was not part of supreme law.

This Article further considers a different “intermediate” view of the law of nations advanced by Professors Anthony J. Bellia and Bradford Clark in their important new book “The Law of Nations and the U.S. Constitution.” Bellia and Clark argue, among other things, that different parts of the law of nations had different roles under the Constitution’s original meaning. Specifically, they argue that the Constitution’s assignment to the federal government of the power to recognize foreign governments implicitly precluded states from interfering with the rights of foreign nations established by the law of nations. Thus, while the law of nations did not become part of supreme law for all purposes, the rights of recognized foreign governments—reflected for example in doctrines such as foreign sovereign immunity and the act of state doctrine—did in effect become part of supreme law, displacing contrary state law. This Article concludes that the Bellia and Clark position is not supported by evidence from the founding era. However, it further concludes that the Bellia and Clark position may be the best way to understand modern judicial practice, which appears to make foreign sovereign rights superior over state law without recognizing a full incorporation of unwritten international law into supreme domestic law.

Claims brought under 28 U.S.C. § 1605(a)(3)—the international takings exception of the Foreign Sovereign Immunities Act—allege some type of expropriation. Although expropriations are generally considered to be sovereign activity, this statutory exception provides that a foreign state shall not be immune from the jurisdiction of state and federal courts in the United States when the foreign state has taken property rights in violation of international law and the property at issue has a commercial-activity nexus with the United States. Until recent years, domestic and foreign courts have generally interpreted expropriation claims according to state responsibility and the international law of expropriation, which stipulates that a taking in violation of international law means an uncompensated taking (takings without prompt, adequate and effective payment) or a taking that is discriminatory or arbitrary in nature. However, some federal courts have rendered an unreasonable interpretation of § 1605(a)(3) to include some variation of genocidal takings: takings that effectuate genocide or are integral to genocide, or takings that constitute genocide.

Based on the legislative history, international law practice, and American constitutional law, Congress did not intend to use § 1605(a)(3) to cover international human rights abuses and, particularly, takings in the context of genocide. Had Congress intended § 1605(a)(3) to encompass allegations of genocide, it could have easily chosen language to achieve such a purpose. Similarly, rulings by the Supreme Court concerning § 1605(a)(3) have emphasized the significance of standards under customary international law and provide scant support for a lower court’s reading of genocidal takings. More fundamentally, a reading of genocidal takings raises sensitive foreign policy issues that are principally entrusted to the political branches responsible for the conduct of international relations—not the judiciary. This Note argues that § 1605(a)(3) provides U.S. courts with jurisdiction only for a plaintiff’s claim based on the traditional prohibition, under international law, against a foreign state’s taking of property without compensation—not for human rights violations. Fairly read, the language of § 1605(a)(3) is clear, and an interpretation of genocidal takings exceeds the jurisdictional limits of the FSIA.

The attached document includes a transcript of the first panel discussion in The Georgetown Law Journal's Volume 106 Symposium, held on Thursday, November 2, 2017. The panelists—Justice Samuel Alito, Judge David Barron of the First Circuit, then-Judge Brett Kavanaugh of the D.C. Circuit, Judge Debra Livingston of the Second Circuit, and Judge Sri Srinivasan of the D.C. Circuit—came together to discuss Professors Anthony J. Bellia and Bradford R. Clark's book, The Law of Nations and the United States Constitution and the issues it raises.