Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute

Abstract:     
Until now, the word that puts the 'A' in ATS has been completely overlooked. No court or commentator has looked to the 1789 meaning of alien, or to the drafters' understanding of, and possible intentions behind that word.

In the Supreme Court's only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate's draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of these changes, but did comment that, because of the poverty of drafting history modern commentators have been forced to concentrate on the text of the ATS itself. Commentators have remarked on the innovative use of the word tort and the mixture of expansive and restrictive terms, but despite considerable scholarly attention, Justice Souter continued, it is fair to say that a consensus understanding of what Congress intended has proven elusive.

When Justice Souter pointed out that the first House made hardly any changes when it modified the Senate's draft of the judicial bill, he could have said that the House made only one change: The bill the Senate submitted for House approval on Monday, July 20, 1789, read, in pertinent part, that the District Courts shall have jurisdiction of all causes where a FOREIGNER sues for a tort only in violation of the law of nations. The house retained that sentence, except for changing foreigner to ALIEN. The word alien did not appear in this part of the bill until the House put it there. This was not mere happenstance.

In 1789 relevant legislators and writers acknowledged a difference between the terms alien and foreigner. This paper details the changes made from Oliver Ellsworth's initial handwritten draft of the first judiciary bill to the final product: the Judiciary Act of 1789. Defining alien and foreigner and related words using legal, international, and general lexicons available to the First Federal Congress, this paper details an understanding of the terms as used in relevant historical writings, and introduces the ramifications and possible reasons for the change from foreigner to alien. I conclude that the Senate's original intent was to make the ATS available to all persons born outside the United States, but because Congress narrowed the scope in the Judiciary Act of 1789 and later relevant legislation, the ATS should only be available to plaintiffs who are foreign-born residents of the United States.

Keywords: alien tort statute, alien tort claims act, ATS, ATCA, TVPA, original intent, legal history, first impression

JEL Classification: B30, B31, K10, K13, K19, K29, K30, K33, K39

working papers series