Inferences of Judicial Lawmaking Power and the Law of Nations

22 Pages Posted: 6 Nov 2017 Last revised: 9 Nov 2017

See all articles by Paul B. Stephan

Paul B. Stephan

University of Virginia School of Law

Date Written: November 4, 2017


This article, presented at a symposium occasioned by the publication of A.J. Bellia’ and Bradford Clark’s The Law of Nations and the United States Constitution, seeks to build on their work. It argues that the law of nations at the time of the founding can inform modern questions of statutory interpretation, at least those with structural constitutional implications. For one important statutory problem, namely a judicial inference of the authority to make federal common law from a grant of subject-matter jurisdiction, the legacy of the founding era’s law of nations still matters.

Bellia and Clark observe that the Supreme Court twice has invoked an inference of prescriptive power from an assignment of adjudicative authority ‒ what I will call a prescriptive inference ‒ to authorize the federal courts to make (their take on) international law into federal law. In 1917, the Court inferred congressional authorization for the federal courts to make federal common law based on international maritime law from the constitutional and legislative grants of admiralty jurisdiction. In 2004, the Court inferred a power to develop a federal common law of international-law torts from the 1789 Judiciary Act’s grant of jurisdiction over tort claims brought by aliens based on the law of nations. Each of these moves frustrates a central goal that, Bellia and Clark argue, the framers pursued. Both increase the risk that the federal judiciary, acting without support or guidance from the political branches, may disturb the friendly relations of the United States with foreign states.

These instances of the prescriptive inference present at least two puzzles. First, why make the inference with respect to admiralty and alien torts, but not alienage jurisdiction, at least in cases invoking the law merchant? The framers created federal alienage jurisdiction to get control over private-law disputes between Americans and foreigners, which State courts had mishandled to the harm of the nation. Why recognize a judicial power to override aberrant state rules in the case of admiralty and alien torts, but not other disputes involving aliens and one of the branches of the law of nations?

Second, where does private international law fit in all this? Did the framers hope to promote the development of uniform rules of recognition of foreign law and judgments through the federal courts, just as they expected the courts to apply the international law merchant and maritime law? If the answer is yes, what explains our modern approach, which allows States to disregard private international law whenever they choose?

I argue that prescriptive inferences generally are problematic and, in the case of international law, confront strong reasons for their avoidance. Contemporary practice with the law merchant and private international law offers a model for a kind of federalism that tolerates State law affecting foreign relations, while reserving to Congress the power to intervene to suppress State misrule. This model fits admiralty and human rights as much as international commerce and recognition of foreign law and judgments.

Suggested Citation

Stephan, Paul B., Inferences of Judicial Lawmaking Power and the Law of Nations (November 4, 2017). Virginia Public Law and Legal Theory Research Paper No. 2017-63, Available at SSRN: or

Paul B. Stephan (Contact Author)

University of Virginia School of Law ( email )

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