ACTUAL COMMITMENT TO COMPLIANCE WITH INTERNATIONAL LAW AND SUBSEQUENT SUPREME COURT OPINIONS: A REPLY TO PROFESSOR MOORE.

• Author: Paust, Jordan J.
• Position: David H. Moore, Virginia Law Review, vol. 102, p. 367

1. INTRODUCTION II. PART I'S FLAWED METHODOLOGY A. Modern Professorial Debate and Unmoored Theory B. Actual Views of Founders and Framers and Trends in Judicial Decision III. Elusive Alleged "Violations" by the Continental Congress A. Admittedly Unproven Customary International Law B. Treaty Interpretations and Unproven Violations 75 IV. CONCLUSION I. INTRODUCTION

   Professor David Moore has made some startling claims in his recent article titled, "Constitutional Commitment to International Law Compliance?" (1) Among them are: (1) the Continental Congress violated a rule of customary international law and three treaties, (2) despite admittedly widespread "unquestionable] concern for compliance with international law" at the time of the Founding; (3) and (2) there was implicit, but uniformly unstated, Founder and Framer approval of a "national discretion to violate international law." (4)

   This reply demonstrates that (1) his claims that the Continental Congress violated a rule of customary international law and three treaties are unproven, (2) overwhelming views of the Founders and Framers and early judiciary were clear that Congress and the President are bound by customary and treaty-based international law, and (3) there was no approval by the Founders or Framers of an alleged authority of any part of the national government to violate customary or treaty-based international law. Indeed, no one declared or embraced an alleged national discretion to violate international law.

2. PART I'S FLAWED METHODOLOGY

   1. Modern Professorial Debate and Unmoored Theory

      Part I of Professor Moore's article draws significant attention to the views of modern professors and generally unmoored theory with respect to: constitutional commitment to international law, the duty of the President under the Take Care Clause, and the express duty of the states under the Supremacy Clause and its relation to national obligations. (5) Despite Professor Moore's stated quest to identify the existence and nature of historic and constitutional commitment to international law, (6) there is surprisingly scant attention drawn on the Founders' and Framers' actual views of compliance duties regarding customary and treaty-based international law. Additionally, Professor Moore pays trivial attention to relevant cases. Specifically, he de-emphasizes the few mentioned discoverable views of the Founders and Framers in five footnotes. (7) His belittlement of such views may stem from his reluctance to recognize the views' affirmation of the early historical commitment to compliance with international law and the compliance duties of Congress and the President.

      Why would Professor Moore pay scant attention to actual views of the Founders and Framers and actual statements made by the early judiciary when investigating historic commitment? Why would he seemingly rely on modern professorial debate and theory in building the inquiry into early constitutional commitment in Part I of his article? The answers to these questions are not evident. This flaw, however, is similar to the methodology employed by revisionist writers that was identified in a prior debate with Professor Moore regarding uniformly recognized duties of states to comply with customary and treaty-based international law. (8) As noted,

      I have wondered why some who prefer what is clearly a minority theoretic construct regarding the role of international law in our domestic legal processes often declare that there is "debate" among law professors, as if that makes constitutional law ... [W]hat revisionist debaters are up against are the overwhelming views of the founders and framers, the text and structure of the U.S. Constitution, and predominant trends in judicial decision that stand unavoidably, and at times famously, in opposition to their minority revisionist preferences. (9) Part II.B of this reply will demonstrate that actual statements from the Founders and Framers and the early judiciary confirm a national commitment and duty to comply with international law. Further, as demonstrated in Part III, alleged violations of international law by the Continental Congress are unproven. None of the Founders or Framers stated that there had been a violation of international law, nor did they declare or embrace an alleged national discretion to violate international law.

   2. Actual Views of Founders and Framers and Trends in Judicial Decision

      1. Congress Was and Is Decidedly Bound by International Law

         1. Congress Is Bound by Customary International Law In answering Professor Moore's inquiry, it is relevant to consider John Jay's emphatic statement that "under the national government, treaties ... as well as the laws of nations, will always be ... executed." (10) This statement is an affirmation which is relevant to the authorities and responsibilities of both Congress and the Executive. Similarly determinative was a 1787 letter by the Continental Congress that declared, "it is our duty to take care that all the rights ... by the laws of nations and the faith of treaties remain inviolate." (11) Furthermore, a 1779 resolution by the Continental Congress claimed a supreme power (as opposed to that of the states) "of executing the law of nations" to assure that the "legality" of any action taken was (since it "must be") "determined by the law of nations," adding that "the law of nations [must] ... be most strictly observed." (12)

            Peter Duponceau, who argued for the defense in the famous Henfield's Case in 1793, (13) expressed common expectations of the Founding-era that the people and each branch of our national government are bound by the law of nations with unmistakable relevant clarity:

            The law of nations ... may be said, indeed, to be a part of the law of every civilized nation; but it stands on other and higher grounds than municipal customs, statutes, edicts, or ordinances. It is binding on every people and on every government. It is to be carried into effect at all times under the penalty of being thrown out of the pale of civilization, or involving the country into a war. Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. It defines offences and affixes punishments, and acts everywhere proprio rigore, whenever it is not altered or modified by particular national statutes, or usages not inconsistent with its great and fundamental principles. Whether there is or not a national common law in other respects, this universal common law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state. (14) A famous Opinion of the Attorney General in 1865 affirmed the recognition that Congress and the President are bound by the law of nations:

            The laws of nations are expressly made laws of the land by the Constitution ... Congress ... cannot abrogate them ... [L]aws of nations ... are of binding force upon the departments and citizens of the Government, though not defined by any act of Congress .... Congress cannot abrogate them or authorize their infraction. The Constitution does not permit this Government [i.e., the Executive, to do so either]. (15) As documented in another writing, the Founders and Framers that recognized that Congress is bound by customary international law included: John Quincy Adams, Alexander Addison, William Allen, Samuel Chase, Peter Duponceau, Albert Gallatin, James Iredell, John Jay, Thomas Jefferson, Thomas Johnson, James Kent, Edward Livingston, James Madison, John Marshall, George Nicholas, William Paterson, Edmund Randolph, George St. Tucker, and James Wilson. (16) Important also was the understanding that the people were bound by international law and could not delegate to the federal government a power that they did not possess. (17)

            With respect to judicial recognition that Congress is bound by customary international law, at least twelve cases that affirmed the primacy of customary international law were based on opinions of Supreme Court Justices (which must necessarily be determinative). (18)

         2. Congress Was Bound by Treaties

            It is apparent that the Founders and Framers and the early judiciary viewed Congress as also bound by treaties. (19) For example, as noted, John Jay declared that "under the national government, treaties ... will always be ... executed." (20) Jay also wrote that "treaties when made are to have the force of laws,... and [are] just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government." (21) In 1843, Attorney General John Nelson added that the "supremacy of a treaty ... is paramount to all mere legislation." (22)

            With respect to treaties, Supreme Court Justice Iredell affirmed that a treaty is obligatory "on all, as well on the Legislative, Executive, and Judicial Departments ... as on every individual of the nation." (23) Prior to Justice Iredell's statement in 1796, Chief Justice Jay declared that "we may repeal or alter our statutes, but no nation can have authority to vacate or modify treaties at discretion. Treaties, therefore, necessarily become the supreme law of the land." (24) In 1835, the Supreme Court affirmed that a treaty "was inviolable by the power of [C]ongress." (25) In 1867, the Court recognized that "Congress has no constitutional power to settle the rights under treaties except in cases purely political" (26) and that "Congress is bound to regard the public treaties." (27) In contrast, the Court declared in 1870 that "[a] treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty," (28) thereby adopting what became known as the last-in-time rule. Yet, in 1872 the Court affirmed its earlier recognition that "Congress has no constitutional power to settle or interfere with rights under treaties, except in cases purely political." (29)

            By the 1880s, the Supreme Court refined its...