Can an earlier treaty . . .
Jonathan H. Adler
jha5 at PO.CWRU.EDU
Mon Sep 17 17:28:21 PDT 2001
Prof. Martin wrote:
"I can turn this argument around and ask upon what basis do YOU claim that
customary international law cannot trump federal statutes?"
I cannot speak for Prof. Volokh, but I can give a textualist basis for this
argument, namely that, under the Supremacy Clause, federal statutes are part
of the supreme law of the land, as are those treaties voluntarily entered
into by the United States. Customary international law, as per the
Constitution's text, is not (although some courts and commentators may
suggest otherwise). Similarly, the judicial power in Article III extends to
cases under federal statutes and treaties entered into under the
Constitution, but not to international law more broadly. As we have already
gone over, the "law of Nations" is referenced elsewhere in the Constitution,
giving rise to the implication that its omission from the Supremacy Clause
is meaningful. Moreover, where treaties are mentioned in Articles III and
VI, the reference is qualified to cover only those treaties entered into
under the authority of the United States. Contra Prof. Martin, this would
seem to exclude treaties to which the United States is not a party.
There is a related argument based upon the "first principles" referenced in
U.S. v. Lopez which goes as follows: The U.S. government derives its
authority from the consent of the governed. It has only those powers
explicitly ceded to it by the people of the several states. Both statutes
and treaties must conform to the limits imposed by the Constitution (see
Lopez; Reid v. Covert, respectively). Moreover, statutes and treaties are
the supreme law of the land only insofar as they are enacted in conformity
with the Constitutions requirements. In other words, all supreme law, like
the Constitution itself, derives its authority from the consent of the
governed. By extension, customary international law is not the Supreme Law
of the Land insofar as it has not been ratified or otherwise accepted by the
people or their elected representatives (either through enactment of a
federal statute under the power to define and punish offenses against the
Law of Nations in Art. I, s8, or through ratification of a treaty).
Therefore, whatever authority customary international law has in U.S.
courts, it is less than that of validly enacted federal statutes, and U.S.
courts should hold accordingly.
This argument, much like Prof. Martin's, is somewhat conjectural, as the
Supreme Court has yet to address this issue head on. Nonetheless I, like
Prof. Volokh, would be very surprised were a federal court to strike down a
federal statute for alleged nonconformity with customary international law.
Jonathan H. Adler
Assistant Professor of Law
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
jha5 at po.cwru.edu
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