William & Mary Law Review Volume 42 (2000-2001) Issue 2 Article 10 October 2000 Federalism and Foreign Affairs: Congress's Power to "Define and Punish...Offenses Against the Law of Nations" Beth Stephens Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the International Relations Commons Repository Citation Beth Stephens, Federalism and Foreign Affairs: Congress's Power to "Define and Punish...Offenses Against the Law of Nations", 42 Wm. & Mary L. Rev. 447 (2000), https://scholarship.law.wm.edu/wmlr/vol42/iss2/10 Copyright c 2000 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr FEDERALISM AND FOREIGN AFFAIRS: CONGRESS'S POWER TO "DEFINE AND PUNISH... OFFENSES AGAINST THE LAW OF NATIONS"* BE=H STEPHENS** TABLE OF CONTENTS INTRODUCTION ..................................... 449 I. THE MODERN DISPUTE OVER THE MEANING OF THE OFFENSES CLAUSE ........................... 458 II. AT THE CONSTITUTIONAL CONVENTION ............... 462 A. The Binding Importance of the Law of Nations ...... 463 B. Crafting a Government Capable of Enforcing the Law of Nations ................... 465 C. Adoption of the Offenses Clause .................. 469 III. JUDICIAL APPLICATION OF THE OFFENSES CLAUSE: FEDERAL POWER OVER THE EVOLVING LAW OF NATIONS.. 477 IV. THE UNSUBSTANTIATED CRIMINAL LAW RESTRICTION ... 483 A. The Eighteenth-CenturySignificance of Offenses Against the Law of Nations ........... 484 1. Offenses Against the Law of Nations in Blackstone's Commentaries ................ 485 2. The Framers'Views of Offenses Against the Law of Nations .......................... 490 3. Eighteenth-Century Usage of "Offenses"....... 496 4. "Offenses" in the Constitution ............... 501 * U.S. CoNsT. art. I, § 8, cl. 10. ** Associate Professor ofLaw, Rutgers University School ofLaw-Camden. J.D., University of California-Berkeley; B.A., Harvard University. Thanks to David Bederman, Curtis Bradley, Roger Clark, Elaine Combs, Perry Dane, Phil Harvey, Kevin Hopkins, Martha Lees, Jules Lobel, Michael Ratner, Peter Spiro, and Allan Stein for comments on earlier drafts, as well as to David Batista and the staff of the Rutgers-Camden library. Special thanks to my research assistants: Mellany Alio, Danielle Buckley, Kelly Lenahan, and Elizabeth Livingstone. 447 448 WILLIAM AND MARY LAW REVIEW [Vol. 42:447 B. To Punish ................................. 504 C. The Civil/CriminalLine ..................... 508 D. Civil Regulation as an Adjunct to the Power to Criminalize ........................ 517 E. The Civil Power in Action: Remedies for Human Rights Violations ........................... 520 V. THE OFFENSES CLAUSE IN CONSTITUTIONAL CONTEXT .... 525 A The ConstitutionalStructure of ForeignAffairs ... 526 B. ConstitutionalLimits on the FederalForeign Affairs Powers ............................. 532 1. Individual Rights ........................ 533 2. Separationof Powers ...................... 536 3. Federalismand ForeignAffairs ............. 540 C. The Juvenile Death Penalty ................. 549 CONCLUSION: FOREIGN AFFAIRS POWERS IN A GLOBAL SOCIETY .............................. 552 2000] FEDERALISM AND FOREIGN AFFAIRS 449 INTRODUCTION The Tenth Clause of Article I, Section 8 of the Constitution grants to Congress the power "[tlo define and punish... Offenses against the Law of Nations.. ." Rarely cited by the Supreme Court, relied upon in only a handful of cases, the Offenses Clause has been the subject of minimal scholarly commentary, with no analysis of its full significance. Yet the long-ignored Clause lies at the heart of the dispute over federalism and foreign affairs and is central to a hotly debated constitutional issue: the federal government's authority, pursuant to the foreign affairs power, to regulate areas traditionally governed by the states. Properly understood, the Offenses Clause grants Congress exceptional powers to incorporate international law into federal law, even when such norms infringe upon areas otherwise regulated by the states. The failure to understand the broad authority contained in the Offenses Clause, and its role in the battle over federalism and foreign affairs, has hampered full understanding of the federal government's foreign affairs powers. The Offenses Clause provides heretofore unrecognized support for a broad interpretation of that power, support rooted not in the structural implications of the Constitution, but in a specific, enumerated constitutional power. Although federal dominance over foreign affairs has long been an accepted pillar of our constitutional structure, tensions about the source and extent of that power have been ever present. These disputes have a new significance today, when the nature of international relations has changed dramatically. Contacts among nations are no longer dominated by trade, diplomacy, and war, and 1. U.S. CONsT. art. I, § 8, cl. 10 [hereinafter Offenses Clause]. The full text of Clause 10 grants Congress the power "[to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." I have modernized the spelling of "offence" to "offense" throughout. I also use the modern term"international law" as a synonym for the"law of nations." Known as the "law of nations" in the eighteenth century, "[niowadays, the terms the law of nations and internationallaw are used interchangeably." MARK W. JANS, AN INTRODUCTION TO INTERNATIONAL LAW 1 (1988); see also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES pt. I, ch. 2, introductory note at 41 (1987) [hereinafter RESTATEMENT (THIRD)] (discussing the "the law of nations, later referred to as international law"). 450 WILLIAM AND MARY LAW REVIEW [Vol. 42:447 are no longer conducted by governments and merchants along well- defined paths. Individuals, local governments, and nations now communicate directly and almost instantaneously across inter- national borders. Increased interactions have led to increased interdependence, and to the recognition that the internal policies of one nation impact directly on its immediate neighbors, its region, and even the world. In a striking response to the international concern about domestic actions, the world communityhas developed detailed norms prohibiting international human rights violations committed by government officials within their own national borders and against their own citizens. Over the past decade, violations of such rights have led to international criminal prosecutions, 2 as well as to wars such as the recent military action in Kosovo.3 This expansion of the terrain governed by international law and of the range of players participating directly in foreign relations poses a challenge to our interpretation of the foreign affairs power. Several scholars have argued in recent articles that federal authority to implement international law obligations is subject to limits imposed by federalism, and that the federal government should not maintain exclusive constitutional power over the implementation of international law, given the evolution of that law to regulate formerly domestic matters. Peter Spiro and Curtis Bradley, for example, both stress the fading distinction between domestic and foreign affairs. Spiro argues that the doctrine of 2. In the first criminal prosecutions for international crimes since World War II, international tribunals were established by the U.N. Security Council to prosecute war crimes and crimes against humanity committed in the former Yugoslavia and Rwanda. See S.C. Res. 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598 (establishing a tribunal for Rwanda); S.C. Res. 827, U.N. SCOR, 48th Sess., 3217 mtg., Doc. S/RES/827 (1993), reprintedin 32 I.L.M. 1203 (establishing a tribunal for the former Yugoslavia). A treaty establishing a permanent International Criminal Court is now open for signature and ratification, to take effect when ratified by 60 nations. See Rome Statute of the International Criminal Court, adopted July 17, 1998, art. 126, 37 I.L.M. 999. 3. See Joint Statement on Kosovo, 35 WEEKLY CoMp. PRES. DoC. 711 (Apr. 23, 1999) (describing the military action against the Federal Republic ofYugoslavia as aimed at ending ethnic cleansing and other violence and protecting "universal human rights and freedoms" in Kosovo); Address to the Nation on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 WEEKLY COMP. PRES. Doc. 516, 516-17 (Mar. 24, 1999) (describing air strikes as a "moral imperative," aimed, in part, to halt Serb attacks "on a largely defenseless people"). 20001 FEDERALISM AND FOREIGN AFFAIRS 451 exclusive federal control over foreign affairs "was once appropriate, even imperative, but is fast becoming obsolete" in the face of increasing state and local government activities in the international arena.4 Bradley criticizes what he calls "foreign affairs excep- tionalism," and urges the application of "the usual constitutional restraints" to federal foreign affairs decisions.5 He concludes that federal foreign affairs powers should be subject to the limitations imposed by the states' primary responsibility for domestic where domestic actions implicate foreign policy affairs-even6 concerns . Questions about the viability of an exclusively federal foreign affairs powers are heightened by the Supreme Court's revived emphasis on states' rights.