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This is the final installment in a three-part series
The understanding of the law of nations’ status as U.S. law that prevailed prior to and at the Constitutional Convention was equally clear in the years immediately after 1789 — as reflected in what were literally the first actions of each of the branches of the federal government. The first model jury charge in the United States’ history, delivered with wide publicity (and no recorded criticism) in 1790 by Jay, sitting as the Nation’s first Chief Justice, characterized the law of nations as part of the Laws of the United States under the Constitution, once more emphasizing the vital importance of national compliance with international law:
The objects of your Inquiry are all offences committed against the Laws of the United States in this District, or on the high Seas by Persons now in the District. You will recollect that the Laws of Nations make Part of the Laws of this, and of every other civilized Nation. They consist of those Rules for regulating the Conduct of Nations towards each other, which resulting from right Reason, rec[ei]ve their obligation from that Principle and from general Assent and Practice. ... We are now a Nation, and it equally becomes us to perform our Duties, as to assert our Rights.1
Likewise, in one of the Attorney General’s first opinions, delivered not long after he had attended the Convention and Virginia ratification debates, Edmund Randolph concluded that there were multiple bases for civil claims against a U.S. citizen for violations of the law of nations, including by virtue of their status as federal law (because “that law is attached to the U.S. from the nature of the subject”):
[D]amages may be recovered in the courts of the U.S., under the jurisdictions established by the judicial law, if an alien be a party; and in the state courts, if both plaintiff, and defendant be citizens. The federal judiciary has also cognizance of offences against the law of nations, because that law is attached to the U.S. from the nature of the subject, without an express adoption of it; and because offences, cognizable under the authority of the U.S. are clearly subjected by the judicial law to the circuit court.2
The same understanding of the status of the law of nations was reflected in the First Judiciary Act—again without recorded protest on this issue. There, despite withholding general federal question jurisdiction from the federal courts, the First Congress granted those courts broad jurisdiction over matters involving application of law of nations rules—including in the Alien Tort Statute and other provisions—which rested on the premise that the law of nations was federal law for purposes of Articles III and VI.3
Laws of Nations in Practice
Shortly after ratification, the Supreme Court’s first decisions also made clear that the law of nations had the status of federal law, with direct preemptive effects in U.S. courts. Opinions in Chisholm v. Georgia, United States v. Peters, Ware v. Hylton, Martin v. Hunter’s Lessee, The Appollon and The Schooner Exchange all treated the law of nations as federal law, applicable as part of the national law of the United States.4
To the same effect, a series of highly-publicized and exceptionally-important federal prosecutions of U.S. citizens for violations of neutrality obligations only a few years after the Constitution’s ratification, including the highly-publicized trial of Gideon Henfield for privateering against British vessels in 1793. These prosecutions repeatedly categorized the law of nations as part of the laws of the United States and, thus, federal law, which could be enforced in federal courts. In another widely-reported jury charge, Jay categorized the law of nations, like treaties and federal statutes, as part of the laws of the United States:
“By their constitution and laws, the people of the United States have expressed their will .... [It is] in pursuance of their authority, that this court is now to dispense their justice in this district; and they have made it your duty, gentlemen, to inquire whether any and what infractions of their laws have been committed in this district, or on the seas, by persons in or belonging to it .... [T]he laws of the United States admit of being classed under three heads of descriptions. 1st. All treaties made under the authority of the United States. 2d. The laws of nations. 3dly. The constitution, and statutes of the United States.”5
In the subsequent prosecution of Henfield, Wilson, sitting as a U.S. circuit judge, again charged the jury that violations of the neutrality obligations imposed by law of nations on American nationals were violations of the laws of the United States, subject to the jurisdiction of the federal courts:
That a citizen, who, in our state of neutrality, and without the authority of the nation, takes an hostile part with either of the belligerent powers, violates thereby his duty, and the laws of his country, is a position so plain as to require no proof, and to be scarcely susceptible of denial. ... Private citizens, therefore, assisting in a business of this kind, offend the law; and for their offences, are amenable to the justice of the nation.6
The Nation’s Consensus
Despite robust disagreements on other matters at the time, there was no dissent from these views on the law of nations from any political quarter. On the contrary, Jefferson, Madison, Randolph and other Republicans joined Washington, Hamilton, Jay, Wilson, Rawle and other Federalists in affirming the law of nations’ status as federal law. Indeed, it was Jefferson who both conceived the strategy of prosecuting Henfield and others in federal courts for violations of the law of nations and also later repeatedly cited, without qualification, that prosecution, and the status of the law of nations as federal law, in his diplomatic communications with foreign nations.7 Likewise, Peter Duponceau, Robert Livingstone and Alexander Dallas—the distinguished Republican lawyers who served as defense counsel for Henfield—consistently acknowledged the same status of the law of nations.8
Treating the law of nations as federal law—as part of the “Laws of the United States”—was not only what the text of Articles VI and III provided. It was also consistent with, and necessary to achieve, the vitally important objectives of the Constitution.
According international law the status of federal law ensured that the interpretation and application of the law of nations would ultimately be in the hands of national (not state) authorities, motivated by national (rather than state) interests, speaking with a single, national voice (rather than multiple, inconsistent state voices). This treatment of international law was necessary to ensure that the United States would comply with its international obligations and be able to participate effectively in the international legal system—both of which were regarded as essential for the Nation’s future, and neither of which could reliably occur if the law of nations had the status of state or other non-federal law.
Concern over state violations of treaties and the law of nations, and the necessity of federal authority over their interpretation and application, were among the most important motivations, and arguably the single most important motivation, for the Constitution. Immediately before the Convention, Madison’s influential Vices of the Political System of the United States, which catalogued the Articles’ defects, placed “Violations of the law of nations and of treaties”9 at the top of its list of the Articles’ most serious shortcomings, again equating the two forms of international law. Similarly, Randolph’s list of the Articles’ flaws, presented at the Convention’s opening, began with their inability to ensure compliance with treaties and the law of nations, again treated identically:
“[The Confederation] does not provide against foreign invasion. If a State acts against a foreign power contrary to the laws of nations or violates a treaty, it cannot punish that State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offended power. It therefore cannot prevent a war.”10
The same insistence on U.S. compliance with international law, and the same concerns about the ability and willingness of the states to do so, continued throughout the ratification debates—once more with virtually no recorded dissent.11
The Nation’s Interests
The reasons that the Framers gave for insisting on the United States’ compliance with treaties and the law of nations were both pragmatic and moral or religious, but of the highest order. The newly-established United States was vulnerable, stretched thinly along the eastern coast of North America, with acquisitive British and Spanish powers to the north and south and hostile Indian tribes to the west. As noted above, violations of the law of nations, whether in the form of U.S. treaties or customary law, could result not just in monetary liability, counter-measures, or reputational damage, but, no less likely at the time, military responses that would threaten the Nation’s existence.12 Just as non-compliance with the law of nations had been invoked by the colonists at the United States’ birth, the Framers were well aware that it could be invoked by the Nation’s enemies at its demise.
The Framers also had less pragmatic, but, for their era, equally compelling, reasons for ensuring compliance with the law of nations. Wilson’s historic lectures at the College of Philadelphia, attended by President Washington, Vice-President Adams, and much of the Cabinet in 1790, stressed above almost all else the religious imperative of complying with the Nation’s international legal duties, while also making clear that the Constitution had been designed to ensure such compliance:
The first and most necessary duty of nations, as well as of men, is to do no wrong or injury. Justice is a sacred law of nations. ... We have seen the divine origin; we have seen the amazing extent; we have seen the uncommon magnitude of the law of nations. ... What a beautiful and magnificent prospect of government is now opened before you [by the application of the law of nations in American courts]! The sluices of discord, devastation, and war are shut: those of harmony, improvement, and happiness are opened!13
Similarly, early U.S. judicial opinions and other sources routinely referred to the law of nations as the “great universal law,” “principles of universal law,” “practice of every nation in the universe,” “law of all tribunals in the society of nations,” and “sanction of the civilized world.”14
Conclusion: International Law and Originalism
The Framers’ uniform views regarding the importance of U.S. compliance with the law of nations, and the necessity of national control over the interpretation and application of international law, confirm what the Supremacy Clause’s text provides: the law of nations was part of the Laws of the United States, subject ultimately to interpretation by the U.S. Supreme Court, with preemptive effects in federal and state courts. Any other conclusion would leave these issues, which were among the Constitution’s most significant objectives, unaddressed. Among other things, the claims of revisionist authors, which treat the law of nations as state law, without the status of part of the “Laws of the United States,” would have left state courts and, even more seriously, legislatures, in the thirteen different states able to continue to violate the Nation’s international obligations—which was what they had occasionally done under the Articles and which was what the Constitution was meant to prevent.
Indeed, treating the law of nations as state law (or some other form of non-federal law) would have produced highly anomalous results. Doing so would have meant that the law of nations’ status of national supremacy, recognized in the Federal Captures Court’s rulings, Jay’s 1786 Report, the Continental Congress’ resolutions, Rutgers v. Waddington, and otherwise under the Articles, had been downgraded under the Constitution—which was, as with U.S. treaties, the opposite of what the Framers said they had intended and accomplished. That account of the law of nations’ treatment by the Framers is highly implausible.
The history of the origins of international law in the United States, summarized in these Articles and addressed in International Law in American Courts, bears directly on current claims by revisionist authors and political figures that international law doesn’t really exist or isn’t really important. At least in the United States, international law not only exists but is embedded in the U.S. Constitution, possessing the status of part of the Laws of the United States. From an originalist perspective, the Constitution’s text, history, and objectives, as well as practice in the Nation’s first decades, leave no serious doubt regarding the status or the importance of both the law of nations and U.S. treaties in the United States. All those sources treat both treaties and other rules of the law of nations as federal law, included in Article VI’s Supremacy Clause and Article III’s grants of federal jurisdiction as part of “the Laws of the United States,” and, in each case, presumptively having direct application in U.S. courts.
That result made perfect sense in the Framers’ era, and it makes just as much sense today. Treating international law as a matter of supreme importance – the Supreme Law of the Land – was essential to achieve several of the Framers’ most important objectives in fashioning the new Constitution, and any other result would have, implausibly, downgraded the status of both treaties and the law of nations from that which the Framers believed existed under the Articles. Those conclusions require, at least for originalists, according both U.S. treaties and the law of nations the status of federal law, presumptively applicable in U.S. courts without further action by the political branches. Given recent events, it may take the institutions of the Nation some time and effort to reconfirm the Framers’ treatment of international law, but the historical legitimacy and contemporary importance of that view of international law are beyond serious debate.
In denying the existence and importance of international law, critics, like Justice Scalia, have declared:
“We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law ....”15
That originalist claim no doubt resonates in some contemporary circles. But, as detailed in these articles, that claim is fundamentally wrong. Careful historical study shows the opposite of what Justice Scalia and other revisionist authors claim – that the Framers drafted the Constitution specifically to include international law as part of the supreme Law of the Land, with the status of federal law. When American courts apply international law they do not usurp Congress’ law-making power, which remains unaltered. Rather, those courts fulfill their constitutional mandate, under Articles VI and III of the Constitution. In contrast, it is unelected judges who refuse to apply rules of international law who usurp the law-making function by refusing to apply the laws of the United States or to fulfill their constitutional mandate.
Endnotes
1. John Jay’s Charge to the Grand Jury of the Circuit Court for the District of New York (April 12, 1790), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800, at 25, 27 (Maeva Marcus et al. eds., 1988) (emphasis added).
2. 1 Op. Att’y Gen. 26, 27 (1792) (Randolph) (emphasis added).
3. Judiciary Act of 1789, Chapter 20, 1 Stat. 73 (September 24, 1789). See Gary Born, International Law in American Courts ¶5.B.4.a (2026).
4. See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 449, 465 (1793); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 226 (1796); Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 135-36 (1812); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 335 (1816); The Appollon, 22 U.S. (9 Wheat.) 362, 366, 370 (1824).
5. Jay’s May 22 Grand Jury Charge, 11 F.Cas. 1099, 1100-01 (C.C.D. Pa. 1793) (No. 6,360) (emphasis added).
6. Henfield’s Case, 11 F.Cas. 1099, 1108 (C.C.D. Pa. 1793) (No. 6,360) (Wilson’s Charge to the Grand Jury).
7. Letter from Thomas Jefferson to George Hammond (May 15, 1793), in 26 The Papers of Thomas Jefferson 38, 38-39 (John Catanzariti ed., 1995); Letter from Thomas Jefferson to Edmond Charles Genet (June 17, 1793), in 26 The Papers of Thomas Jefferson 301, 301 (John Catanzariti ed., 1995).
8. See Gary Born, International Law in American Courts ¶5.B.8 (2026).
9. James Madison, Vices of the Political System of the United States, in 9 The Papers of James Madison 345, 349 (Robert A. Rutland & William M.E. Rachal eds., 1975).
10. McHenry’s Notes (May 29, 1787), in 1 The Records of the Federal Convention of 1787, at 24, 24-25 (Max Farrand ed., 1911) (Randolph) (emphasis added).
11. See Gary Born, International Law in American Courts ¶¶4.B.4.b, 4.C.1, 5.B.3, C.3 (2026).
12. See id. at ¶4.C.1, 5.C.3.
13. James Wilson, Lectures on Law: Of the Law of Nations, in 1 The Works of James Wilson 148, 160 (Robert G. McCloskey ed., 1976) (emphasis added); James Wilson, Lectures on Law: Of Man, as a Member of the Great Commonwealth of Nations, in 1 id. at 270, 280, 282.
14. See Gary Born, International Law in American Courts ¶3.B.3.c, 4.C.1, 5.C.3.
15. 542 U.S. 692, 750 (2004) (Scalia, J., concurring in part and concurring in the judgment).
