Constitutional Commitment to International Law Compliance?

81 Pages Posted: 25 Mar 2015 Last revised: 24 Mar 2016

See all articles by David H. Moore

David H. Moore

Brigham Young University - J. Reuben Clark Law School

Date Written: March 19, 2016

Abstract

To what extent does the Constitution commit the United States to comply with international law? The question is a critical one, with implications for both the stature of international law and the conduct of U.S. foreign affairs. The question is also one of degree. Few would argue that the Constitution invariably commits the United States to comply with international law. Most scholars, for example, agree that Congress has discretion to violate international law by statute. At the same time, few would argue that the Constitution leaves the United States free to disregard international law entirely. Scholars agree, for example, that self-executing treaties preempt conflicting state laws, forcing the states to comply with these treaties’ terms. The critical question is where along the spectrum between commitment and discretion the constitutional position toward international law lies. This Article asserts that the position tends closer to national discretion to violate international law than constitutional commitment scholarship might suggest.

Scholars who claim a constitutional commitment to international law make both broad and narrow claims. Some argue that the Constitution as a whole reflects a strong commitment to international law compliance. Others find that while the Constitution does not require the United States to comply, it does bind either or both of its political branches to international law compliance. Scholars assert, for example, that the Take Care Clause obligates the President to adhere to the two primary sources of international law: treaties and customary international law (“CIL”). Others contend that the Supremacy Clause obligates U.S. treatymakers to enter self-executing treaties — that is, treaties that are immediately enforceable in U.S. courts — to preempt state law and prior inconsistent federal statutes.

Not all scholars who claim a constitutional commitment to international law proceed from historical premises, but many do. They invoke Founding-era history to support constitutional obligations to international law. Moreover, to the extent Founding-era history is a relevant guidepost in constitutional interpretation, Founding-era history is relevant to the validity of claims that have not relied on it. Founding-era history yields at least two bodies of evidence in support of a constitutional commitment to international law. First, the Founding era provides a wealth of statements by leading figures underscoring the importance of compliance with international law. These statements are consistent with theories of law, especially natural law, common to the Founders.

Second, Founding-era history yields the oft-repeated narrative that the drafting and ratification of the Constitution were motivated, in significant part, by state violations of international law during the period of Confederation. This conventional narrative is true as far as it goes. Under the Articles of Confederation, the states unquestionably violated U.S. treaties, including the Treaty of Peace with Great Britain, causing serious foreign relations problems for the nation as a whole. Moreover, the Confederation Congress lacked power to mandate compliance with CIL, leaving the states to prosecute CIL violations. A desire to control state violations of treaties and to empower the national government to respond to CIL violations undoubtedly influenced the terms and ratification of the Constitution.

Yet a strong constitutional commitment to comply with international law does not follow as a matter of logic or history. Logically, the narrative of concern for state violations and state power provides a motive to centralize power. But, centralizing power is different than, and does not require, restraining the power that is centralized. Thus, it is illogical, without more, to rely on the conventional narrative of state violation and state control to find a constitutional commitment to international law compliance.

Nor does history bridge the gap. The oft-times unspoken assumption behind the conventional narrative is that under the Articles of Confederation the national government, unlike the states, was committed to international law but simply lacked the power to comply. The Constitution, it is believed, gave the national government the authority to follow through on its commitment to adhere to international law. This catechism has emerged, however, from scholars’ unrelenting focus on state practice during Confederation. When the focus broadens to include the national government, the catechism collapses.

The national government under the Articles of Confederation did not manifest consistent compliance with international law. Focusing for the first time on the national government’s behavior toward international law during Confederation, this Article reveals that the Confederation government, like the states, violated international law. More specifically, the national government departed from the law of nations governing treaty ratification and engaged in self-interested interpretation, if not violation, of the handful of treaties the United States had entered.

When it came time to create the Constitution, there was unquestionably concern for compliance with international law. The principal documents bearing on the Constitution’s creation — the debates of the Constitutional Convention, Federalist Papers, and records of state ratification conventions — clearly reveal, consistent with the conventional narrative, a concern for state violations of international law. But no similar concern was expressed for the national government’s departures from international law. Had there been such a concern, it might have led to an express constitutional mandate of national compliance. Rather than adopt such a mandate, the Constitution embraced structural reforms to facilitate adherence to international law. That is, the Constitution transferred foreign affairs powers from the states to the federal government and assigned the exercise of those powers to players and processes that could improve compliance with international law. The result is that just as federalist interests are generally protected today through lawmaking players and processes, compliance with international law appears to be secured through constitutional structure.

This is not to say that there is no evidence to support a commitment to international law compliance by the federal government or a subset of its actors. The focus of this Article is on the core Founding-era evidence that has been cited to support (or that might bear on, even if not cited by particular scholars) constitutional commitment to international law compliance. As to that evidence, once one takes into account the national government’s departures from international law during Confederation, Founding-era statements in support of international law compliance and the conventional narrative of state noncompliance take on a different hue. The broader history suggests that these statements reflect a general commitment to international law that may yield in the face of concrete national interests. Similarly, the lack of concern during the Constitution’s creation for the Confederation government’s violations of international law coupled with the Constitution’s adoption of structural protections, rather than a substantive mandate, of international law compliance undermine claims of a strong constitutional commitment to international law compliance. The upshot is increased support for constitutional discretion to violate international law.

This Article reaches this conclusion as follows. Part I surveys prominent scholarly arguments for constitutional commitment to international law, noting, in particular, reliance on Founding-era evidence, including the conventional narrative of state violation of international law during Confederation. Section II.A briefly demonstrates that the logic of the conventional narrative — which is the logic of collective action — does not compel constitutional commitment to international law, leaving space for an alternative thesis. Section II.B steps into that space to offer such a thesis. Section II.B departs from the conventional, state-focused narrative to reveal the as-yet-untold story of the national government’s actions toward international law under the Articles of Confederation. This Section documents ways in which the Confederation Congress departed from the law of nations and bent treaties to national advantage. Part III explores the primary records of the Constitution’s creation — the Constitutional Convention debates, Federalist Papers, and state ratification records — to reveal that the focus during the Constitution’s formation was on state, not national, violation of international law. The Framers did not express concern for the Confederation government’s departures from international law. Consistent with this lack of concern, the Constitution embraced not a substantive mandate to comply with international law, but structural reforms that could facilitate international law compliance.

As a general matter, the national government’s violation of international law during Confederation, the absence of concern for that violation during constitutional creation, and the Constitution’s ultimate adoption of structural protections rather than an obvious substantive mandate of national compliance suggest that claims of a constitutional commitment to international law compliance are overstated. The takeaway is not that the United States or its agents should violate international law. Compliance may, in fact, be the best policy and what the Framers and ratifiers generally anticipated. However, the evidence developed in this Article lends support for national discretion to violate international law.

Keywords: constitution, international law, executive, president, compliance, take care, supremacy, treaty, customary international law, structural

Suggested Citation

Moore, David H., Constitutional Commitment to International Law Compliance? (March 19, 2016). 102 Virginia Law Review 367 (2016), BYU Law Research Paper No. 15-05, Available at SSRN: https://ssrn.com/abstract=2584179

David H. Moore (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

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Brigham Young University
Provo, UT 84602
United States
801-422-8549 (Phone)
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