The Law of Nations as a Constitutional Obligation
Michael D. Ramsey
Does the U.S President have a constitutional obligation to comply with international law? 1That question, long debated in commentary, has new force today. The modern exigencies of the
metaphorical „war on terror‟ and the all-too-real wars in Afghanistan and Iraq pose the question
starkly: does the President have constitutional power to decide that U.S. national security requires actions that violate unwritten but commonly accepted principles arising from, for 2example, international humanitarian law and the laws of armed conflict?
Although the matter has been widely discussed, few attempts have been made to assess it strictly in terms of the historical meaning of the Constitution‟s text. Most accounts assume,
explicitly or implicitly, that changes in the nature of international relations, in international law, 3or in our understanding of law itself, call for a distinctly modern meaning. The debate has
centered principally on the modern role of the presidency, and on disputes over the meaning of Supreme Court cases decided long after the founding. This article, in contrast, pursues a textual and historical inquiry, and while it does not argue that this must control modern interpretation, it suggests that the Framers‟ solution remains comprehensible and workable in the modern era.
The question turns initially on the Constitution‟s Article II, Section 3, which directs that the President “shall take care that the laws be faithfully executed.” This clause confirmed that the U.S. President could not exercise what in England was called the „dispensing‟ or „suspensive‟ 4power, as sometimes claimed by the king: the power to suspend or override law. It was added
as the companion clause to Article II, Section 1, which gave the President the “executive Power” of the United States; although the contours of the “executive Power” are much disputed, it is relatively common ground that the executive power did not, as a general matter, include the 5“legislative” power to make (or displace) law. Taken together, Article II, Sections 1 and 3
assigned the President the power and duty to uphold and enforce laws, assuring that the President could not create, change or disregard laws.
1 E.g., Michael Glennon, Raising the Paquete Habana: Is Violation of Customary International Law by the
Executive Unconstitutional?, 80 NW. U. L. REV. 321 (1985); Agora, May the President Violate International Law?,
80 AMER. J. INT‟L L. 913 (1986); Agora, May the President Violate International Law? (con’t), 81 AMER. J. INT‟L L.
371 (1987); Arthur Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205 (1988). 2 Although the current President maintains that U.S. policy is to follow international law in conducting the war on terror, the Department of Justice argued in 2002, in an internal memorandum leaked to the media, that the President is not constitutionally bound by international law, such as rules against torture. See Michael Ramsey, Torturing
Executive Power, 93 GEORGETOWN L.J. 213 (2005) (describing and criticizing the memorandum). 3 The leading accounts are, moreover, almost twenty years old, and predate a substantial turn to textual analysis in foreign affairs law. See Agora, supra note 1, at 913, 923, 930; Glennon, supra note 1. For historical accounts, see
Agora, con’t, supra note 1, at 377 (essay by Jordan Paust) (arguing on the basis of Framers‟ intent that the President is bound by international law); Jules Lobel, The Limits of Constitutional Power: Conflicts between Foreign Policy
and International Law, 71 VA. L. REV. 1071 (1985) (same); contra Weisburd, supra note 1; see also Stewart Jay,
The Status of the Law of Nations in Early American Law, 42 VAND. L. REV. 819 (1989) (examining history without
reaching a definite conclusion). 4 Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701 (2003). 5 See Saikrishna Prakash & Michael Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001).
Unfortunately, the drafters of the “take care” clause did not specify which “laws” the President must faithfully execute. Presumably they did not mean all “laws” – the President
would not be bound by foreign law, for example, or biblical law. But they might not have meant only laws enacted by Congress (since the text lacks that limitation expressly). In particular, the constitutional generation acknowledged a set of international rights and duties, which they called the “law of nations,” arising outside of U.S. law and yet binding, in at least some senses, on the
United States. The Constitution‟s text itself acknowledged such a system, giving Congress 6 Moreover, the existence of power to “define and punish … offenses against the law of nations.”
this law formed a central tenet of Enlightenment legal and political writing, on which eighteenth-7century Americans heavily relied. It is not implausible that, when the Framers spoke of “laws,” they meant the law of nations as well as statutory law.
Americans took law-of-nations obligations seriously, worrying that the weak national government under the Articles of Confederation (the governing document of the Union from 1781 to 1789) did not adequately ensure that the nation could and would respect its international duties. The need to strengthen the Articles‟ law-of-nations aspects played a material role in
arguments for adopting the Constitution. But while the Framers embraced the law of nations conceptually, it is unclear how they fit it into their constitutional system.
One possibility, suggested by Justice Horace Gray‟s pivotal opinion in The Paquete
Habana (1900), is that the law of nations is part of U.S. law of its own force. Gray famously claimed that “International law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it 8are duly presented for their determination.” He identified no text or other material
constitutional authority in support, and it is not even clear he thought he was interpreting the Constitution. Nonetheless, Gray‟s aphorism has become central – almost talismanic – to claims
that international law imposes constitutional obligations upon domestic actors, including the 9President, who is presumably bound by “our” law, albeit international in origin. In this view,
international law, though not reflected in positive enactment, is (or “is like”) federal common 10law, imposing similar obligations.
6 U.S. CONST. Art. I, Sec. 8. 7 E.g., 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 43 (1765); EMMERICH DE VATTEL,
DROIT DES GENS [Law of Nations] (Joseph Chitty ed. 1852 (1758). See PETER ONUF & NICHOLAS ONUF, FEDERAL
UNION, MODERN WORLD: THE LAW OF NATIONS IN AN AGE OF REVOLUTIONS, 1776-1814, at 11 (1993). See
ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS 150-64 (rev. ed. 1954). 8 175 U.S. 677, 700 (1900). 9 Gray imposed an international law obligation on an executive branch officer, a naval captain during wartime. He emphasized, though, that the President‟s policy was to follow international law in conducting the war, and that the
President had not directed the acts in question. For attempts to untangle Gray‟s ambiguities, see, e.g., LOUIS
HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 239-45 (2d ed. 1996); Glennon, supra note 1, at 348-58. 10 See especially Beth Stephens, The Law of Our Land: Customary International Law as Federal Law after Erie, 66
FORDHAM L. REV. 393 (1997); Lea Brilmayer, Federalism, State Authority and the Preemptive Power of
International Law, 1994 SUP. CT. REV. 295. On broader debates over the relationship between international law and U.S. law, see, e.g., Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555 (1984);
Arthur Weisburd, State Courts, Federal Courts and International Cases, 20 YALE J. INT‟L L. 1 (1995); Curtis
Bradley and Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern
Position, 110 HARV. L. REV. 815 (1997); Harold Koh, Is International Law Really State Law?, 111 HARV. L. REV.
1824 (1998); Ryan Goodman & Derek Jinks, Filartiga’s Firm Footing: International Human Rights and Federal
Common Law, 66 FORDHAM L. REV. 463 (1997); Gerald Neuman, Sense and Nonsense about Customary