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The Law of Nations and the Constitution: an Early Modern Perspective

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The Law of Nations and the Constitution: an Early Modern Perspective The Law of Nations and the Constitution: An Early Modern Perspective DAVID M. GOLOVE* & DANIEL J. HULSEBOSCH** 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 dif®cult 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 conse- quential 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 rati®cation of the new Constitution. That imperative shaped the structure outlined in the text, as well as much of the way that judges, executive of®cials, and even legislators interpreted and administered the Constitution during the ®rst 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 admin- istration, became enormously controversial and generated early partisan divisions. But the basic premiseÐthat the law of nations was the law of the landÐproved durable, creating a tradition of international ªlaw- mindednessº 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 dia- logue over the Founding. Nonetheless, in our view, the legal theory that Professors Bellia and Clark offer downplays, misses, or misunder- stands crucial features of the pertinent history, especially why and how the Founders struggled to interweave the law of nations into the * Hiller Family Foundation Professor of Law at NYU School of Law. © 2018, David M. Golove & Daniel J. Hulsebosch. ** Charles Seligson Professor of Law at NYU School of Law. The authors would like to thank Professors Anthony Bellia and Bradford Clark for their thought-provoking book and generous invitation to participate in this Symposium. We would also like to thank all of the participants in the Symposium Conference held at the Georgetown Law Center on November 2-3, 2017. 1593 1594 THE GEORGETOWN LAW JOURNAL [Vol. 106:1593 Constitution. These errors and elisions are important, in part for purely academic reasons, bearing on the extent to which their approach accu- rately 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. TABLE OF CONTENTS INTRODUCTION . 1595 I. THE RECOGNITION/ALLOCATION OF POWERS THEORY OF THE LAW OF NATIONS IN U.S. LAW . 1598 II. THE CONSTITUTION'S ADOPTION OF THE LAW OF NATIONS AS THE LAW OF THE LAND. 1605 A. THE FOUNDING GENERATION'S EMBRACE OF THE LAW OF NATIONS . 1607 B. THE ADOPTION OF THE LAW OF NATIONS AS LAW OF THE UNITED STATES ................................................ 1612 1. The Struggle over the Status of the Law of Nations During the Confederation . 1612 2. The Founding Consensus that the Constitution Adopted the Law of Nations as Law of the Land . 1616 C. THE LAW OF NATIONS AS LAW OF THE LAND: IMPLICATIONS IN THE EARLY REPUBLIC. ........ ............. 1623 1. The Status of the Law of Nations as Law of the Land Meant that the States Were Obliged to Observe It . 1624 2. The President Was Likewise Obliged to Observe the Law of Nations in Carrying Out the Duty to Execute the Laws 1624 3. Was Even Congress Obliged to Observe the Law of Nations When Exercising Its Legislative Power? . 1633 III. THE HISTORICAL EVIDENCE FOR PROFESSORS BELLIA AND CLARK'S THEORY . 1639 A. THE FOUR EARLY SUPREME COURT CASES AND THEIR PROPER INTERPRETATION......... ............. 1640 1. United States v. Peters .......................... 1640 2. Schooner Exchange v. McFaddon. 1643 2018] LAW OF NATIONS & THE CONST.: EARLY MODERN PERSPECTIVE 1595 3. The Nereide .................................. 1646 4. Brown v. United States .......................... 1651 B. FOUR MORE SUPREME COURT CASES: CONGRESS'S POWER TO DISREGARD THE LAW OF NATIONS ........ 1653 1. Neither Bas v. Tingy Nor The Schooner Adeline Upheld Acts of Congress that Violated the Law of Nations . 1653 2. Neither Schooner Exchange Nor Murray v. Schooner Charming Betsy Ruled that Congress Had Constitutional Power to Violate the Law of Nations. 1655 CONCLUSION ...................................................... 1657 INTRODUCTION It is often remarked that ª[t]he past is a foreign country: they do things differ- ently there.º 1 The early American Republic's engagement with the law of nations may be foreign in that sense today, at least after a generation of studied forgetful- ness. Yet there remain valuable lessons from the nation's revolutionary origins. The way that the Founding generation marked out national sovereignty while simultaneously building in commitments to international law, in the form of trea- ties and the customary law of nations, offers insight into their truly revolutionary understanding of national sovereignty and its limits, as well as their vision of pro- ductive international relations. 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 twenti- eth century have found it dif®cult to comprehend, or even recognize, the Founding generation's commitment to the law of nations as a system of law, ju- risprudence, 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 promi- nent place of the law of nations in the constitutional reform project that culmi- nated 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 rati®cation of the new Constitution.2 That imperative, moreover, shaped the structure outlined in the text, as well as much of the way that judges, executive of®cials, and even legislators interpreted 1. L.P. HARTLEY, THE GO-BETWEEN 1 (1953); see also DAVID LOWENTHAL, THE PAST IS A FOREIGN COUNTRY (1985). 2. For discussion of these themes, see David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition , 85 N.Y.U. L. REV. 932 (2010). 1596 THE GEORGETOWN LAW JOURNAL [Vol. 106:1593 and administered the Constitution during the ®rst generation of the federal govern- ment. The result was a government designed to interact productively with the law of nations. Some of those interpretations, and some aspects of federal administra- tion, became enormously controversial and generated early partisan divisions. But the basic premiseÐthat the law of nations was the law of the landÐproved dura- ble, creating a tradition of international ªlaw-mindednessº that deserves more his- torical investigation than it has so far received. 3 The result is not just a scholarly lacuna. Among many lawyers today, the Founders' conception of the central posi- tion 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. 4 There is a great deal to admire in their book and much about their theory of the Constitution and the law of nations with which we agree. Nevertheless, we disagree with fundamental aspects of their account and appreciate this op- portunity to explore, or at least sketch, some of the most important of those differences. 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 many of 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 foun- dational 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. A partly sound theory can yield helpful results on some points but have misleading implications for others. That is the case here. In Part I, we describe the core of Professors Bellia and Clark's theory, as we understand it, about how the Constitution as originally rati®ed interacted with the 5 law of nations. Their account seeks to identify the original constitutional 3. We derive the term ªlaw-mindednessº from legal historian John Phillip Reid, who devoted several books to documenting the common law-mindedness of American colonists in the revolutionary period and of early American settlers in the western territories. See, e.g., JOHN PHILLIP REID, THE CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION, 4 vols.
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