David Moore (Brigham Young University – J. Reuben Clark Law School) has posted Constitutional Discretion to Violate International Law (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract.
Scholars have long claimed that the Constitution commits the United States to comply with international law. These claims come in various forms. Some find the commitment to comply in the Constitution as a whole; others derive obligations toward international law from specific constitutional provisions such as the Take Care Clause and the Supremacy Clause. These claims often proceed from historical premises. They rely on statements by leading figures from the Founding that extol international law compliance. These claims also rely on the conventional account of international law’s status during the period of Confederation. The conventional narrative emphasizes that state violations of international law during this period generated foreign affairs crises for the nation as a whole. In response, scholars claim, the Constitution obligated the new government to comply with international law.
The conventional narrative is true as far as it goes. State violations during Confederation did generate concerns that influenced the Constitution’s creation. Yet the conventional narrative is too narrow. The narrative’s unrelenting focus on state violations of international law has blinded scholars to the national government’s experience with international law during Confederation. Critically, this blind spot has in turn led scholars to overstate the Constitution’s substantive commitment to international law. Drawing on previously neglected historical evidence, this Article reveals the national government’s relationship to international law under the Articles of Confederation. This original research shows that the national government during Confederation deviated from both of the primary sources of international law: treaties and the law of nations. Notwithstanding the nation’s weakness internationally, the national government engaged in self-interested interpretations of the handful of treaties the nation had entered and departed from the law of nations requirement of mandatory ratification of negotiated agreements.
Tellingly, during the constitution making that followed Confederation, the Framers and ratifiers expressed concern for state, but not national, departures from international law during Confederation. This omission — previously unnoticed due to the conventional narrative’s unremitting focus on the states — suggests that the many Founding-era statements in support of international law reflect a general commitment to international law that yielded to concrete national interests. The lack of concern for national violation of international law during Confederation likewise underscores another critical contribution of this Article — the observation that the Constitution adopted not a substantive commitment to international law, but structural provisions that tend toward international law compliance.
In light of the national government’s violation of international law during Confederation, the absence of concern for this violation during constitutional creation, and the Constitution’s ultimate adoption of structural protections rather than a substantive mandate of national compliance, claims of a constitutional commitment to international law compliance are overstated. Together, the Confederation history of national noncompliance uncovered by this Article and the previously unrecognized fact that the Constitution adopts structural rather than substantive protections for international law compliance suggest that the Constitution preserves national discretion to violate international law.
Posted at 6:34 AM