Can an earlier treaty (or "international law") trump aCongressional statute?

[John C. Eastman]

Francisco Forrest Martin wrote (in part):

> Also consider that another branch of our government also has opined that
> international law trumps federal statutes.  11 Op. Att'y Gen. 297, 299-300
> (1865) (Congress has no power to abrogate customary international law or to
> authorize its infraction as "it is binding on all branches of our government
> and citizens"); 9 Op. Att'y Gen. 356, 362-63 (1859) (public  law of nations
> "must be paramount to local law in every question when local laws are in
> conflict" and "[w]hat you will do must of course depend upon the law of our
> own country, as controlled and modified by the law of nations").

In 1865, we were still (almost uniformly) of the view that the law of nations
was the same thing as immutable higher law, or natural law, the same natural law
by which the United States claimed to right to independence.  It is therefore no
surprise that the Attorney General in 1865 -- a member of an administration that
had done a great deal to advance the fundamental principles of higher law at
home in the United States -- would opine that the higher law was binding on all
branches of government.  But that natural law understanding of the law of
nations no longer holds true, and to the extent it does not, neither does the
old view of its binding nature.
John Eastman
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