"COLUMBIA LAW REVIEW
VOL. 109 JANUARY 2009 NO. 1
THE FEDERAL COMMON LAW OF NATIONS
Anthony J. Bellia Jr.*
Bradford R. Clark**
...
This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations’ “perfect rights” (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history.
* Professor of Law and Notre Dame Presidential Fellow, Notre Dame Law School.
** William Cranch Research Professor of Law, George Washington University Law School.
...
The Supreme Court has treated certain aspects of the law of nations as a set of background rules to guide its implementation of the Constitution’s allocation of powers. Specifically, the Court has respected foreign sovereigns’ “perfect rights” (and close analogues) as a means of ensuring that any decision to commit the nation to war would rest exclusively with the political branches, and not with the judiciary or the states.
...
After the founding, public officials and judges initially debated a question similar to the one that dominates customary international law debates today: whether federal courts have Article III power to adopt the law of nations as part of a preemptive, jurisdictiontriggering federal common law. They ultimately moved beyond this question, concluding that the constitutional structure precludes the existence of a federal municipal common law. Instead, they recognized the perfect rights of sovereigns as essential background for understanding the Constitution’s allocation of powers.
This Article recovers this lost context and, in the process, identifies a third way to conceptualize how important aspects of the law of nations have interacted with the federal system.
Our account recaptures the Founders’ understanding of core aspects of the law of nations and best describes the Supreme Court’s reliance on such law in key cases throughout American history."
The full, long (93 pages), and heavily footnoted article can be found here:
http://www.columbialawreview.org/assets/pdfs/109/1/Bellia___Clark.pdf
Excellent work as always, thank you for the pings!
Thank you for the ping and for your hard work!
Thank you and all the other scholars — patriots all — for your painstaking research into the historical origins and fundamental precepts that underpin our constitution.
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No wonder Hussein wants control of the internet.