Korematsu

[Francisco Forrest Martin]

Prof. Adler states that my claim that "[t]he framers of our Constitution
accepted that international law that was not enacted by the American people
still was binding law and recognized this by adopting the Supremacy Clause"
is not supported by the text of the Supremacy Clause. In response, I quote
from my book, CHALLENGING HUMAN RIGHTS VIOLATIONS: USING INTERNATIONAL LAW
IN U.S. COURTS (2001):

"Customary international law has been a part of U.S. federal law since our
country was established. When Mr. Justice Jay stated that "the United States
by taking a place among the nations of the earth [became] amenable to the
laws of nations," he was speaking of customary international law, not merely
the treaties the U.S. would one day make. Chisholm v. Georgia, 2 U.S. (2
Dall.) 419, 474 (1793); see Ware v. Hylton, 3 U.S. (3 Dall.) 199, 281 (1796)
("When the United States declared their independence, they were bound to
receive the law of nations . . . ."); Filartiga v. Pena-Irala, 630 F.2d 876,
877 (2nd Cir. 1980) ("Upon ratification of the Constitution, the thirteen
former colonies were fused into a single nation, one which, in its relations
with foreign states, is bound both to observe and construe the accepted
norms of international law, formerly known as the law of nations.").  For a
new nation, the law of nations was entirely customary law.  Even the
obligation to obey future treaties stemmed from the customary international
law principle of pacta sunt servanda ("promises are to be kept").

"The states under the Articles of Confederation had applied international
law as common law,  but with the signing of the U.S. Constitution, the law
of nations became preeminently a federal concern.  "[I]t is now established
that customary international law in the United States is a kind of federal
law, and like treaties and other international agreements, it is accorded
supremacy over state law by Article VI of the Constitution."  Louis Henkin
et al., International Law: Cases and Materials 164 (3d ed. 1993).

"Although customary international law (unlike treaties) is not mentioned
expressly in the Supremacy clause or in the constitutional listing of U.S.
law in Article III, this omission is not important because the law of
nations was perceived by the Framers as constituting pre-existing
obligations that did not require a constitutional provision for enforcement.
The Supremacy Clause was addressed to the states, and was designed to assure
federal supremacy. Louis Henkin, International Law as Law in the United
States, 82 Mich. L. Rev. 1555, 1565-66 (1984)."

In regard to the U.S.' international legal obligations under the Fourth
Geneva Convention, I would further note that Alexander Hamilton argued that
the Executive had a constitutional duty to execute international law in
order "to avoid giving a cause of war to foreign powers." Alexander
Hamilton, Pacificus 1 in 15 Papers of Alexander Hamilton 40 (Harold Syrett
ed. 1961).

Prof. Adler continues: "The "Law of Nations" is mentioned in Article I,
section 8, but this is in the context of giving Congress the power to
"define and punish" offenses against international law.  In either case --
use of the "define and punish" power or the
ratification of a treaty -- the people's representatives must act to make
international law binding upon the United States.  At least, that's what the
Constitution seems to say."

Recall that in United States v. Smith, the U.S. Supreme Court held that a
definition of piracy that relied only upon extra-statutory, customary
international law sources available in 1820 was sufficiently clear, thereby
obviating the need for implementing legislation.  However, I do think that
implementing legislation addressing specific penalties is constitutionally
required if there is no international law addressing penalties.

Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law