The Law of Nations as a Constitutional Obligation

By Gail Stewart,2014-11-25 19:51
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The Law of Nations as a Constitutional Obligation

    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. INTL L. 913 (1986); Agora, May the President Violate International Law? (con’t), 81 AMER. J. INTL 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.


    DROIT DES GENS [Law of Nations] (Joseph Chitty ed. 1852 (1758). See PETER ONUF & NICHOLAS ONUF, FEDERAL


    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. INTL 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