This panel was convened at 9:00 a.m., Saturday, March 26, by its moderator, Ingrid Wuerth of Vanderbilt University Law School, who introduced the panelists: Mary Dudziak of the University of Southern California, Gould School of Law; Lori Damrosch of Columbia Law School; and David Sloss of Santa Clara University School of Law.
Two CENTURIES OF INTERNATIONAL LAW IN THE U.S. SUPREME COURT
By David Sloss
International Law in the U.S. Supreme Court: Continuity and Change is a volume that I co-edited with Michael Ramsey and William Dodge. (1) A group of distinguished scholars contributed chapters and/or essays for the project. Collectively, their contributions present a comprehensive account of the evolution of international law doctrine in the U.S. Supreme Court from the Court's inception to 2010. The book examines all the lines of cases in which international law has played a material role, showing how and when the Court's treatment of international law changed over the past two centuries.
The main goal of the book is descriptive, not prescriptive. My co-editors and I knew before we started the project that international law doctrine in the Supreme Court today is very different than it was in the early nineteenth century. Our goal was to describe the Court's application of international law in the nation's early years, and then describe doctrinal changes over time, focusing on what changed and when key changes occurred. The book says very little about why key changes occurred, but it does establish a solid foundation for other scholars to debate the "why" questions. Scholars cannot have an intelligent debate about why doctrine changed without first ascertaining what changed and when those changes occurred.
THE STRUCTURE OF THE BOOK
The book divides U.S. constitutional history into five time periods: 1789-1860, 18611900, 1901 - 1945, 1946-2000, and 2001-2010. Part One cons sts of a single chapter, authored by the three co-editors, which covers the period from 1789 to 1860. That chapter establishes a baseline from which to gauge future changes. Other scholars have written extensively about the Court's application of international law in the nation's early years. Accordingly, Part One provides a fairly abbreviated account of the Court's application of international law in the pre-Civil War period, while providing extensive citations to other scholarship for readers who want to dig deeper. (2)
Parts Two to Four, respectively, cover the periods 1861-1900, 1901-1945, and 1946-2000. The Supreme Court's application of international law between the Civil War and World War II has not previously been studied in great detail. The book makes a major contribution by filling this gap in prior scholarship. Parts Two to Four each consist of four chapters: one on treaties; (3) one on customary international law; (4) one on the use of international law as an interpretive tool; (5) and one historical commentary. (6) The chapters on treaties, custom, and interpretation are primarily doctrinal. In contrast, the historical commentary chapters link the doctrinal developments in a given era to broader historical trends during that time period.
Part Five examines the first decade of the twenty-first century. It is divided into five subparts addressing treaties, (7) customary international law, (8) international law in constitutional interpretation, (9) international law in statutory interpretation, (10) and the war on terror. (11) Given the many international law cases decided by the Supreme Court over the past decade, and the sharp controversy surrounding some of those decisions, we decided to present contrasting viewpoints on the main decisions. Therefore, each sub-part includes one main essay and two shorter response essays that present alternative perspectives on key cases.
Part Six presents conclusions. Written by the three co-editors, it provides a concise summary of the most important changes in the Court's international law doctrine over the past two centuries. Although the Court's international law doctrine manifests substantial continuity from the late eighteenth to the late nineteenth century, the pace of change accelerated during the twentieth century. Consequently, few aspects of the Court's international law doctrine remain the same today as they were two hundred years ago.
INTERNATIONAL LAW AS A CONSTRAINT ON THE GOVERNMENT
It is not possible in these brief remarks to describe the numerous changes in the Court's international law doctrine over the past two centuries. Instead, in the space allotted here, I will describe one of the more interesting and previously overlooked developments. Throughout its history, the Supreme Court has applied international law as a constraint on government action. However, the manner in which the Court has applied international law to constrain the government has changed over time.
Throughout the nineteenth century, the Court applied both treaties and customary international law directly (i.e., as a rule of decision) to constrain domestic government actors. It also applied both treaties and custom indirectly, in the context of statutory interpretation, to constrain government actors. However, during the nineteenth century the Court's use of international law in constitutional interpretation tended to enhance, rather than constrain, government power.
In the early twentieth century (1901-1945), the Court continued to apply treaties--both directly as a rule of decision and indirectly as an aid to statutory interpretation--to constrain state and federal government actors. During this period, though, the Court rarely applied customary international law (either directly or indirectly) as a constraint on government action. Meanwhile, the Court continued to use international law in constitutional interpretation to enhance government power.
In the late twentieth century (post-World War II), the Court rarely applied treaties directly as a constraint on domestic government actors. However, in contrast to earlier periods, the Court began to make vigorous use of both treaties and customary international law in the context of constitutional interpretation to constrain domestic government actors.
The shift toward greater reliance on international law in constitutional interpretation has effectively transferred power over the domestic application of international law from Congress to the courts. To illustrate this point, compare Jordan v. Tashiro, (12) decided in 1928, with Lawrence v. Texas, (13) decided in 2003.
Both cases involved claims by individuals who challenged the discriminatory application of state laws. Japanese plaintiffs in Tashiro challenged a California law that--according to state government officials--prohibited noncitizens from creating a corporation for the purpose of building and operating a hospital. The Court directly applied a bilateral treaty with Japan to support its ruling in favor of the plaintiffs. (14) Petitioners in Lawrence challenged a Texas law that state government officials applied to criminalize private sexual activity between consenting, homosexual adults. The Court applied international law indirectly to support its holding that the Texas law violated the Fourteenth Amendment. (15)
Interestingly, the Court in Tashiro could potentially have reached the same result by applying the Fourteenth Amendment's Equal Protection Clause to preclude discrimination against aliens. (16) Conversely, the Court in Lawrence could potentially have reached the same result by directly applying a treaty: Article 17 of the International Covenant on Civil and Political Rights. (17)
There are two reasons why the Court's approach in Tashiro--applying a treaty directly, rather than using international law in constitutional interpretation--is more consistent with democratic values and more respectful of legislative primacy. First, the bilateral treaty applied by the Court in Tashiro had been approved by a two-thirds majority in the Senate. Hence, the Court applied a law that bore the seal of democratic legitimacy. In contrast, the international law invoked by the Court in Lawrence had never been approved by any domestic legislative body in the United States. (18) Moreover, no one seriously contends that the authors of the Fourteenth Amendment intended to invalidate state laws imposing criminal penalties for sodomy.
Second, by directly applying a treaty in Tashiro, the Court left the door ajar for Congress to reverse the Court's decision, if it chose to do so, by enacting a federal statute authorizing discrimination against noncitizens. More broadly, whenever the Court applies a treaty directly to invalidate a state law, Congress can reverse that decision because Congress has the power under the later-in-time rule to supersede treaties for the purpose of domestic law. In contrast, when the Court in Lawrence applied international law indirectly as an aid to construing the Fourteenth Amendment, the Court effectively disabled Congress because Congress does not have the power to override the Supreme Court's interpretation of the Constitution.
In sum, from the late eighteenth century until World War II, the Supreme Court frequently applied international law to constrain the government, but it did so by applying treaties and customary international law directly, and by applying international law in statutory interpretation. All these mechanisms are consistent with democratic values and respectful of legislative primacy: they preserve Congress's authority as the final decisionmaker on matters involving the domestic application of international law. In contrast, in the past few decades, when the Court has used international law to constrain the government, it has tended to import international law through the vehicle of constitutional interpretation. The modern approach is in tension with democratic values because it entrenches...