The constitutionality of international courts: the forgotten precedent of slave-trade tribunals.

• Author: Kontorovich, Eugene

Nor is the aggravation of the crime for the trial of which a tribunal may be instituted[] a cogent motive for assenting to the principle of subjecting American citizens ... to the decision of foreign courts; for although Great Britain ... may be willing to abandon those of her subjects who defy the laws and tarnish the character of their country[] by [committing human rights abuses], to the dispensation of justice even by foreign hands, the United States are bound to remember that the power which enables a court to try the guilty, authorizes them also to pronounce upon the fate of the innocent; and that the very question of guilt or innocence is that which the protecting care of their Constitution has reserved for the citizens of this Union, to the exclusive decision of their own countrymen.

John Quincy Adams (1)

The United States' participation in international courts and, in particular, its potential accession to the International Criminal Court (ICC), a court that would have jurisdiction over U.S. nationals and U.S. territory, raise serious constitutional questions. These questions were thoroughly analyzed in the course of the debate about the constitutionality of international courts proposed by Britain in the early nineteenth century, an episode that has never before been examined for its relevance to current legal and policy debates. This Article presents that historical debate and draws lessons for the present.

The permissibility of the United States joining international tribunals spans several major constitutional issues: the delegation of federal powers to supernational institutions; the limits, if any, on what the treaty power can do; and the vesting of judicial power in non-Article III courts. While these are all famously confused and contentious areas of law, the preponderance of scholarly opinion concludes that the Constitution does not bar the United States from joining international courts, including the ICC.

The jurisprudence and literature on these questions, however, have neglected an important precedent. In the wake of the Napoleonic Wars, a network of international tribunals to punish slave trading was created. Many European nations joined these "mixed courts." The United States, however, saw the courts as unconstitutional. It refused to join the mixed-court system f or forty-five years, a period that spanned eleven presidencies. Constitutional objections were formulated by some of the leading statesmen of the early Republic and even by some members of the founding generation. They were unanimous in their view that the Constitution forbids joining an international criminal court with jurisdiction over American nationals.

They raised several constitutional objections of both structural and individual-rights varieties. The United States complained, in a long series of diplomatic missives, that such a court's decisions would not be reviewable by the Supreme Court and that, even more importantly, the court would subject U.S. nationals to criminal trials without a jury and other Bill of Rights protections. These objections were unanimously held in James Monroe's distinguished Cabinet, shared by Congress, and undisputed by anyone for decades.

This Article examines the constitutional objections stated at the time of the slave-trade courts and shows that some, but not all, international criminal courts are likely to be unconstitutional, while noncriminal international tribunals are far less problematic. The foregoing suggests that it would be unconstitutional to join an international criminal court with jurisdiction over certain offenses, some of which are within the ICC's charter. The evidence presented here can guide the tailoring of such courts' jurisdiction to avoid constitutional conflicts.

Aside from the precedential significance, the nineteenth-century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence in modern terms. It provides surprisingly relevant guidance on questions such as the permissibility of non-Article III courts, constitutional restraints on the treaty power, and the binding effect of judgments of international courts. Additionally, nearly every argument made today about American exceptionalism in international law and concerning the conflict between domestic and international law was rehearsed nearly two hundred years ago.

INTRODUCTION I. CURRENT CONSTITUTIONAL DEBATES A. Non-Article III Courts 1. The Nineteenth Century: Territorial, Military, and Consular Courts 2. The Twentieth Century: Administrative Courts and Public Rights 3. The Availability of Article III Review B. Non-Article III Juries C. International Courts II. THE REJECTION OF MIXED COURTS A. The Campaign Against the Slave Trade B. Rejecting the Mixed-Courts Proposal C. Not Taking "No" for an Answer 1. A Second Cabinet Meeting 2. Trading Canada for Commissions? D. Congress's Views E. Commissions Overboard III. UNDERSTANDING THE CONSTITUTIONAL OBJECTIONS A. Structural Constitutional Objections 1. Wirt's Nondelegation Arguments 2. Adams's Appellate Objections B. Bill of Rights Objections C. The Importance of Criminal Jurisdiction D. The Precedential Value of the Rejection 1. Sincerity 2. Limits 3. Universal Jurisdiction 4. Offenses by Service Members 5. Foreign Territory IV. CIVIL WAR AND CIVIL SUITS A. Quick Negotiations B. The Constitutional Argument C. A Court with No Cases D. The Precedential Value of the Acceptance V. IMPLICATIONS FOR MODERN COURTS AND DEBATES A. Reconciling the Precedents 1. The Stronger Precedent 2. An Area of Agreement B. Implications for International Courts C. The Rome Treaty's Overbreadth D. The Extradition Analogy E. Non-Article III Courts and the Treaty Power CONCLUSION INTRODUCTION

International courts (2) play a small but growing role in resolving interstate disputes as well as in directly applying criminal law to individuals. The United States' participation in such tribunals raises an array of serious constitutional questions--questions that are particularly urgent in light of the United States' potential accession to the International Criminal Court (ICC), for this court would have jurisdiction over U.S. nationals and U.S. territory. (3) This Article presents perhaps the best source of understanding these questions: the discussion of the constitutionality of joining international courts to try slave traders in the early nineteenth century. This obscure episode has never before been examined for its relevance to current constitutional debates.

The permissibility of the United States joining international tribunals spans two major constitutional issues: the vesting of judicial power in non-Article III courts and the delegation of federal powers to supernational institutions through the treaty power. (4) Both areas of law are known for their zigzagging lines of cases and contentious academic debate. Nonetheless, the preponderance of scholarly opinion concludes that the Constitution permits U.S. participation in the ICC and similar tribunals. (5)

The literature on these questions, however, has neglected an important precedent. In the wake of the Napoleonic Wars, Britain created a network of international tribunals to punish slave trading. Many European nations joined these "mixed courts." The United States refused to participate, arguing that the Constitution forbade joining an international criminal court with jurisdiction over American nationals. The constitutional objections were formulated by some of the leading statesmen of the early Republic, including some members of the founding generation. As with the ICC, an initial rebuff by the United States did not end efforts to secure U.S. membership. Still, the United States stayed aloof from the mixed-court system for forty-five years--a period spanning eleven presidencies with varied politics and attitudes toward Britain, international engagement, and the slave trade.

This history raises serious questions about the constitutionality of joining the ICC or other international tribunals that would have jurisdiction over U.S. nationals. The evidence presented in this Article suggests that giving an international criminal court jurisdiction over certain offenses within the ICC's charter would generally be unconstitutional. This does not mean, however, that U.S. participation in international criminal courts would always be unconstitutional. While the ICC runs afoul of constitutional limitations, the story of the slave trade courts shows that some international criminal courts could be constitutional. Thus, the evidence presented here can guide the tailoring of such courts' jurisdiction to avoid constitutional conflicts. In light of this evidence, noncriminal international tribunals seem far less problematic.

Aside from having precedential significance, the nineteenth-century discussion of why joining such a court would be impermissible speaks directly to today's constitutional jurisprudence and helps draw lines between permissible and impermissible international delegations of judicial authority. It is also an untapped source of guidance on other leading constitutional questions, such as the domestic use of non-Article III courts and the scope of and limitations on the treaty power.

Additionally, nearly every argument made today about American exceptionalism in international law and about the conflict between domestic and international law was rehearsed nearly two hundred years ago. America was accused abroad of xenophobia, arrogant exceptionalism, petty formalism, and indifference to massive human rights abuses. (6) Domestically, there were arguments that the Constitution could not be interpreted in ways that would keep the country out of an emerging world order of international cooperation: everyone else had joined the treaty, and the United States' credibility as a human rights leader would be undermined if it did not participate. Even the idea of...