The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context

Abstract

Both the text of the Alien Tort Statute and its historical context demonstrate that the First Congress did not mean to limit jurisdiction to suits against U.S. citizens or even to violations of the law of nations that were recognized at that time. Rather, they intended that the district courts “have cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” The text of the Constitution also shows that “Laws of the United States” in Article III is broader than “Laws of the United States which shall be made in Pursuance [of the Constitution]” under Article VI, and history shows that Article III's phrase was read at the time, and may be fairly read today, as including the law of nations. To say this is, of course, not to resolve every aspect of the debate over the role of customary international law in the U.S. legal system, but it is to say that Filartiga was constitutional when it was decided.