The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law

Posted: 18 Aug 1998  

Curtis A. Bradley

Duke University School of Law

Abstract

There has been substantial discussion in recent years of the status of international law in U.S. courts. Most of this discussion has focused on the circumstances under which international law -- whether conventional or customary -- should provide a substantive rule of decision in U.S. litigation. Another important role for international law, however, is in the interpretation of domestic law. Since early in this nation's history, U.S. courts have looked to international law in construing federal statutes. Perhaps most notably, they have followed the so-called "Charming Betsy canon" of construction, pursuant to which federal statutes are construed, where reasonably possible, so that they do not violate international law.

The Charming Betsy canon has a long pedigree, but its justifications and contours are not entirely clear. After outlining the history of the canon, this Article explores two common conceptions of the canon, which the Article labels the legislative intent conception and the internationalist conception. In short, the legislative intent conception views the canon as a means of implementing the will of Congress, whereas the internationalist conception views the canon as a means of ensuring that the United States complies with and gives effect to international law. Although traditional accounts of the canon primarily have reflected the first conception, there have been a number of recent efforts by scholars and judges to promote the second one.

This Article argues that both of these conceptions are questionable in light of changes in academic thinking regarding canons, the content and structure of international law, and the role of the federal courts in making common law.

The Article proposes instead a third conception, which it labels the separation of powers conception. Under this conception, the Charming Betsy canon is a means by which courts help preserve a proper relationship between the three branches of the federal government.

Among other things, the canon allows courts to shift certain types of decisionmaking to the political branches and to reduce friction between them and the judiciary. This conception does not provide a perfect defense of the canon because judicial use of the canon involves not only separation of powers benefits, but also separation of powers costs. Nevertheless, the Article concludes that, on balance, this conception provides the most persuasive account of the canon's contemporary role in the U.S. legal system.

JEL Classification: K33

Suggested Citation

Bradley, Curtis A., The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law. Georgetown Law Journal, Vol. 86, No. 3, 1998. Available at SSRN: https://ssrn.com/abstract=113717

Curtis A. Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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