Hobbes v. Publius in International Law

[msellers]

The United States Constitution never envisaged a Hobbesian world order.

  Hobbes was viewed as a very clever, but pernicious philosopher by the
drafters of the United States Constitution, who considered him an apologist
for tyranny.  The world is not (and certainly ought not to be) a Hobbesian
place, in the eyes of the United States Constitution, which set out to
"establish" both "Justice" and "Liberty" against tyranny and oppression.

  The drafters of the United States Constitution (rightly)took it for granted
that the United States were and would be bound by international law, which (in
common with all educated people of that era), they understood to be "the law
of nature applied to nations".  The federal structure of the U.S. Constitution
strongly reflects contemporary conceptions of international law.  (On which
see the interesting volume by Nicholas and Peter Onuf.)

  The question for the framers (as for any enlightened person) is not whether
the United States are bound by international law, but how to discover the
content of the law that binds them, in the absence of any legitimate
international legislature.  The United States Constitution gives this power to
the Congress of the United States in Article I, section 8: "The Congress shall
have the power ... To define and punish ... Offenses against the Law of
Nations."  As no better or more democratic world legislature has emerged in
the interim, this power still properly resides in the United States Congress,
which is still more likely to define international law correctly than any
other deliberative body.  This is why under both the United States
Constitution and under the simple rules of justice, the U.S. courts still
defer to Congress about the content of international law.

  The U.S. Constitution is fundamentally sound both in recognizing the binding
nature of international law, and in understanding how to determine the content
of international law, through democratic and republican procedures.

>===== Original Message From Discussion list for con law professors
<CONLAWPROF at listserv.ucla.edu> =====
>Sorry, one last point.
>
>I agree with Eugene that our constitution does not require us to adhere
>to international law.  In the domestic sphere we follow the Lockean
>principle of the rule of law (at least in theory).  In the
>international shere, it's a Hobbesean world. This may be the most
>serious flaw in our constitution and one that warrants deeper
>reflection and consideration.
>
>Allan