Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States

Abstract:     
This article contributes to the "arrival of history" in constitutional scholarship and the revival of foreign affairs jurisprudence in the legal academy. I contend that the so-called "modern" position on the status of international law as federal law - today's received wisdom - changed substantially between the time of its first authoritative articulation in 1972 and its enshrinement in the first tentative draft of the Third Restatement on the Foreign Relations Law of the United States in 1980. I relate these changes to broader jurisprudential, political, and international developments in the period between those events. I seek to demonstrate that a strong statement of the modern position reflected the assumptions and anxieties of a precise historical moment. As that moment has passed, we can question whether the position has much to say to the present moment. An era defined by the September 11 attack on the United States and the government's response seems unconnected to the anxieties and assumptions that underlay the modern position.

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