The law of nations and the offenses clause of the Constitution: a defense of federalism.

• Author: Morley, Michael T.

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. (1) Instead of being a supreme parliament, (2) able to do whatever it believed necessary to promote the nation's health, safety, welfare, or morals, (3) Congress was crafted as a legislature of strictly enumerated powers. (4) Every law passed by Congress must fall within one of these discrete powers, (5) or be "necessary and proper" to the execution of such a power. (6)

In the decades after the New Deal, however, it seemed as if almost nothing was beyond the purview of the federal government. Nearly any federal law could be upheld as an exercise of the commerce power; (7) whatever civil rights measures fell outside its scope were justified by Section 5 of the Fourteenth Amendment. (8) Indeed, in over fifty years, the Supreme Court struck down only one federal law as exceeding Congress's ostensibly limited constitutional authority. (9)

This changed, of course, with three cases starting in the mid-1990s: United States v. Lopez, (10) City of Boerne v. Flores, (11) and United States v. Morrison. (12) For the first time in twenty-five years, the Supreme Court actually struck down laws as exceeding Congress's commerce and Reconstruction powers. The Court even set forth guidelines for determining whether statutes are authorized by the Commerce Clause. (13) As a result of this constitutional upheaval, many academics began to scour the Constitution, looking for alternate fonts of congressional authority to replace the now truncated commerce and Reconstruction powers.

Perhaps the most ingenious suggestion is that proposed by Professor Beth Stephens. (14) Building upon an amicus brief filed in Morrison by certain "International Law Scholars and Human Rights Experts," (15) she argues that a little-known constitutional provision, the Offenses Clause, could serve to authorize not only the laws struck down in Lopez, Boerne, and Morrison, but also legislation affecting almost all spheres of domestic activity. The Clause empowers Congress to "define and punish ... Offences against the Law of Nations." (16) Professor Stephens claims that this provision empowers Congress to enact civil and criminal legislation in any area upon which international law touches. Given the broad sweep of contemporary international law, this approach would turn the Offenses Clause into a Commerce Clause for the twenty-first century. It would bring virtually every aspect of society, including those traditionally left to state regulation, under congressional authority. (17)

This Note takes the opposite point of view, (18) arguing that the Offenses Clause is a modest grant of authority, insufficient to support laws such as the Gun-Free School Zones Act (19) and the Violence Against Women Act (VAWA), (20) or to undermine American federalism. The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended. (21) I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens--including navigation, trade, war, and diplomacy--that comprise what the Framers believed to be the immutable law of nations. (22)

Part I of this Note explores the claims made by Professor Stephens and the International Law Scholars, setting forth their case for viewing the Offenses Clause as an important source of substantive authority for Congress. It also examines the consequences of this approach, outlining the wide range of areas traditionally reserved to the states that it would enable Congress to regulate. Part II refutes the primary assumption upon which this interpretation is based. First, I argue that the phrase "law of nations" as used in the Offenses Clause is a term of art that is not synonymous with international law. I demonstrate that it refers to principles in certain well-defined areas that govern interactions among foreign countries and foreign nationals. The term excludes wholly domestic conduct that does not have a direct effect on foreign nations or nationals. Because the law of nations is rooted in natural law, its substantive content was understood by the Framers as being immutable. While modern-day treaties and evolving international norms are important parts of international law, they cannot expand the scope of the law of nations.

Part III argues that even if courts abandon the true meaning of the phrase "law of nations" and insist on interpreting it in a modern light, the most faithful modern analogue of this concept is neither international law as a whole, nor customary international law, but jus cogens norms. Allowing for the enforcement of jus cogens norms under the Offenses Clause is less faithful to the provision's true meaning than the approach advocated in Part II. The concept of jus cogens, however, has many important similarities to the law of nations, and the range of recognized jus cogens norms is fairly narrow. Consequently, this interpretation of the Offenses Clause would be a legitimate compromise, retaining much of the Clause's original meaning while preventing it from being used to eliminate the boundary between state and federal authority. Part IV concludes.

The Offenses Clause has been virtually ignored throughout most of this nation's history and has yet to be thoroughly explored by the legal literature. (23) In light of suggestions that Congress use the Clause as a replacement for its once-omnipotent commerce and Reconstruction powers, a thorough examination of the history and meaning of its central phrase--"the law of nations"--is necessary.

1. THE ARGUMENT FOR A BROAD INTERPRETATION OF THE OFFENSES CLAUSE

   The argument for an expansive reading of the Offenses Clause is straightforward, but rests on critical assumptions about the meaning of the phrase "law of nations." Professor Stephens readily admits that she assumes "`the terms the law of nations and international law are used interchangeably.'" (24) Because the term "international law" includes international agreements and customary international norms, Stephens concludes that the phrase "law of nations" does, as well. (25) If one accepts Stephens's premise, then an international agreement or international norm addressing a particular topic or calling for state action in a certain area may serve as the basis for federal legislation in that area under the Offenses Clause. Treaties and international law norms may thereby enable the enactment of legislation that Congress would be otherwise powerless to pass.

   This theory has significant ramifications for recent Supreme Court decisions enforcing limits on the federal government's power. Under well-established Supreme Court precedent, a statute can be justified as an application of congressional power under the Offenses Clause even if Congress did not state that it was exercising that power at the time of the law's enactment. (26) Thus, statutes such as the Violence Against Women Act struck down in Morrison (27) could be upheld under an expansive interpretation of this font of authority.

   The Declaration on the Elimination of Violence Against Women, for instance, declares that nations should "[e]xercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons." (28) Furthermore, nations should

   [d]evelop penal, civil, labour and administrative sanctions in domestic legislation to punish and redress the wrongs caused to women who are subject to violence; women who are subjected to violence should be provided with access to the mechanisms of justice and, as provided for by national legislation, to just and effective remedies for the harm that they have suffered. (29) The term "violence" is explicitly defined to include rape. (30)

   This document complements the Convention on the Elimination of All Forms of Discrimination Against Women, which obligates nations to

   take all appropriate measures ... [to] modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. (31) Both the Declaration and the Convention more clearly spell out nations' obligations under the International Covenant on Civil and Political Rights (ICCPR). (32) The ICCPR requires each nation to "respect and to ensure to all individuals within its territory ... the rights recognized in the present Covenant, without distinction of any kind, such as ... sex." (33) Among the rights recognized by the ICCPR are those of "life ... liberty, and security of person." (34) It is difficult to imagine any act more violative of the security of a person than rape. These instruments, when read together, clearly make violence against women in general, and rape in particular, a violation of international law. Professor Stephens and the International Law Scholars maintain that such violations of international law (35) are by definition offenses against the law of nations, for which the Offenses Clause empowers the government to enact civil and criminal penalties. Under this reasoning, the VAWA would be constitutional. (36)

   A similar case can be made with respect to the Religious Freedom Restoration Act (RFRA), portions of which were invalidated in Boerne. (37) The RFRA required facially neutral federal, state, and local laws that infringed upon religious freedom to pass a statutorily defined strict scrutiny test. (38) This Act, too, can be seen as a manifestation of Congress's power to define and punish offenses against the law of nations as understood by...