In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations

Abstract

This article provides the most thorough exposition to date of actual trends in early expectation and judicial decision that are relevant to whether the people, Congress, the President, and the states are bound by customary international law and whether the law of nations is part of the laws of the United States and, therefore, has a constitutional base. Customary international law has been used directly and indirectly for interpretive purposes in numerous federal and state cases. Importantly, the fact that the people are bound by customary international law and the federal government is one of delegated powers requires recognition that the people could not transfer to Congress of the federal executive an authority to violate the customary law of nations. As the article demonstrates, several Founders and Framers shared that recognition.

Keywords: Chase, Congress, Constitution, customary international law, define and punish, Duponceau, Founders, Framers, human right, Iredell, international law, Jay, Jefferson, judicial, law of nations, law of war, laws of the United States, Madison, Marshall, President, States, supremacy, treaty, Wilson