The Constitution and the International
Order Outline
Prof. Feldman
Spring 2009
Ethan Kent
CONST. & INT’L ORDER OUTLINE
Chapter 1 – Constitution and Empire
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§ 1.01 – Summary of Cases & Materials ................................................................................................................5
[A] – Somersett’s Case, 98 Eng. Rep. 510 (K.B. 1772) ........................................................................................5
[B] – Scott v. Sandford, 60 U.S. 393 (1856)..........................................................................................................5
[C] – Downes v. Bidwell, 182 U.S. 244 (1901) .....................................................................................................5
[D] – Johnson v. Eisentrager, 339 U.S. 763 (1950) ...............................................................................................5
[E] – Ahrens v. Clark, 335 US. 188 (1948) ...........................................................................................................5
[F] – Reid v. Covert, 354 U.S. 1 (1957) ................................................................................................................6
[G] – United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ...........................................................................6
[H] – Rasul v. Bush, 542 U.S. 466 (2004) .............................................................................................................6
[I] – Boumediene v. Bush, 128 S.Ct. 2229 (2008).................................................................................................7
§ 1.02 – Important Themes .....................................................................................................................................7
[A] – Lawyers’ Special Skills ................................................................................................................................7
[B] – The History and Origins of the Writ of Habeas Corpus ...............................................................................8
[C] – Sovereignty...................................................................................................................................................8
[D] – Natural Law..................................................................................................................................................9
[E] – The Tension between Limited Powers and Empire ......................................................................................9
[G] – Guantanamo’s Rationale ............................................................................................................................ 10
[H] – Ideology and the Justices............................................................................................................................ 10
[I] – SCOTUS Justices: A Soap Opera ................................................................................................................ 11
[J] – Constitutional Rights without Remedies? ................................................................................................... 12
Chapter 2 – International Law?
13
§ 2.01 – Summary of Cases & Materials .............................................................................................................. 13
[A] – The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812) ...................................................................... 13
[B] – United States v. Schooner Peggy, 5 U.S. 103 (1801) ................................................................................. 13
[C] – The Antelope, 23 U.S. 66 (1825) ............................................................................................................... 13
[D] – Vattel, The Law of Nations (1758, English edition of 1854) lv–lxvi ......................................................... 13
[E] – Joseph Story, “Law of Nations,” in Encyclopedia Americana vol. ix (1843) 141–49 ................................ 13
[F] – Brown v. United States, 12 U.S. 110 (1814) ............................................................................................... 13
[G] – Foster v. Neilson, 27 U.S. 253 (1829) ........................................................................................................ 14
[H] – United States v. Percheman, 32 U.S. 51 (1833) ......................................................................................... 14
[I] – The Paquete Habana, 175 U.S. 677 (1900) .................................................................................................. 14
[J] – Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ................................................................................... 14
[K] – Tel Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) ........................................................... 15
[L] – Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996)........................................................................................... 15
[M] – Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984) ................. 15
[N] – Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern
Position, 110 Harv. L. Rev. 815 (1997) ............................................................................................................... 15
[O] – Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ......................................................................................... 15
§ 2.02 – Important Themes ................................................................................................................................... 16
[A] – The Law of Nations, the Law of Nature, and Individuals .......................................................................... 16
[B] – Treaties ....................................................................................................................................................... 16
[C] – Who / What is the U.S. Sovereign? ............................................................................................................ 16
[D] – Sources of Customary International Law ................................................................................................... 17
[E] – CIL as U.S. law........................................................................................................................................... 17
[F] – Act of State & Political Question Doctrines ............................................................................................... 18
[G] – The Alien Tort Statute Today..................................................................................................................... 18
[H] – The Blackstone Three ................................................................................................................................ 18
[I] – The Relationship Between our Constitution and the International Order .................................................... 18
Chapter 3 – Torture: An Interlude
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§ 3.01 – Summary of Cases & Materials .............................................................................................................. 20
[A] – Geneva Conventions, Common Article III ................................................................................................. 20
[B] – Memo from Jay Bybee to Alberto Gonzales (Aug. 1, 2002) ...................................................................... 20
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[C] – McCain Torture Act ................................................................................................................................... 20
[D] – Congressional testimony—Gonzalez, Mukasey, and Holder ..................................................................... 20
[E] – Committee against Torture, Israel High Court Case ................................................................................... 20
§ 3.02 – Important Themes ................................................................................................................................... 20
[A] – Attorney Responsibilities ........................................................................................................................... 20
[B] – What is Torture? ......................................................................................................................................... 21
[C] – Unitary Executive ....................................................................................................................................... 21
[D] – What’s Do the Senate Confirmation Hearings Tell Us About Torture? ..................................................... 22
[E] – Authorization v. Avoidance of Liability ..................................................................................................... 22
Chapter 4 – War and Exception
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§ 4.01 – Summary of Cases & Materials .............................................................................................................. 23
[A] – The Lieber Code: Excerpts ......................................................................................................................... 23
[B] – Letter from Abraham Lincoln to Sen. Albert G. Hodges (Apr. 4, 1864) .................................................... 23
[C] – Abraham Lincoln, Message to Congress in Special Session (July 4, 1861) ............................................... 23
[D] – Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863) ......................................... 23
[E] – Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) ............................................................................. 23
[F] – Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ............................................................................................ 23
[G] – Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 12–13 (George Schwab,
trans. 1985) .......................................................................................................................................................... 24
[H] – Korematsu v. United States, 323 U.S. 214 (1944) ..................................................................................... 24
[I] – Ex parte Endo, 323 U.S. 283 (1944) ............................................................................................................ 24
[J] – Ex Parte Quirin, 317 U.S. 1 (1942) ............................................................................................................. 24
[K] – In re Yamashita, 327 U.S. 1 (1946) ............................................................................................................ 25
[L] – Hirota v. MacArthur, 338 U.S. 197 (1949) ................................................................................................. 25
[M] – Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ................................................................................................. 25
[N] – Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ............................................................................................... 26
[O] – Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005) ........................................................................................... 26
§ 4.02 – Important Themes ................................................................................................................................... 26
[A] – The Tests of a Constitution ........................................................................................................................ 27
[B] – War = Necessity?........................................................................................................................................ 27
[C] – Sharp Wars ................................................................................................................................................. 27
[D] – Habeas as Guardian of the Rule of Law ..................................................................................................... 27
[E] – A Schmittian Analysis of U.S. Exception ................................................................................................... 27
[F] – Do it But Don’t Bring it into Court ............................................................................................................. 28
[G] – Habeas Jurisprudence: Jurisdiction v. Substance ....................................................................................... 28
[H] – The Geneva Convention ............................................................................................................................. 28
Chapter 5 – Who Obeys What? The States and International Law
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§ 5.01 – Summary of Cases & Materials .............................................................................................................. 29
[A] – Missouri v. Holland, 252 U.S. 416 (1920) ................................................................................................. 29
[B] – Reid v. Covert, 354 U.S. 1, 16-18 (1957) ................................................................................................... 29
[C] – Convention on Consular Relations (Apr. 24, 1963) – Article 36 ............................................................... 29
[D] – State Department Materials on VCCR Compliance: Flow Chart and Booklet ........................................... 29
[E] – LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27) ......................................................................... 29
[F] – In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31). 30
[G] – George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005) ............................................... 30
[H] – Sanchez-Llamas v. Oregon & Bustillo v. Johnson, 548 U.S. 331 (2006) .................................................. 30
[I] – Medellin v. Texas 120 S. Ct. 1346 (2008) .................................................................................................. 30
§ 5.02 – Important Themes ................................................................................................................................... 31
[A] – Federal and State Power and Treaties ........................................................................................................ 31
[B] – Comity and Timid Courts ........................................................................................................................... 31
[C] – The Supreme Court as (Exclusive?) Interpreter of Treaties ....................................................................... 32
[D] – Treaties, Unsettled? .................................................................................................................................... 32
[D] – The Political Implications of Self-Execution (Now and Then) .................................................................. 32
[E] – Anthony Kennedy v. Everyone Else ........................................................................................................... 32
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Chapter 6 – The Constitution in International Markets / Rights and International Norms
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§ 6.01 – Summary of Cases & Materials .............................................................................................................. 33
[A] – Charles A. Beard, An Economic Interpretation of the Constitution Of The United States (1913) ............. 33
[B] – Robert A. McGuire, To Form A More Perfect Union: A New Economic Interpretation of the United
States Constitution (2003) ................................................................................................................................... 33
[C] – McCulloch v. Maryland, 17 U.S. 316 (1819), 401-25 ................................................................................ 33
[D] – Legal Tender Cases: Hepburn v. Griswold, 75 U.S. 603 (1870); Knox v. Lee & Parker v. Davis, 79 U.S.
457 (1871) ........................................................................................................................................................... 33
[E] – Gold Clause Cases: Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240; Nortz v. United States, 294
U.S. 317; Perry v. United States, 294 U.S. 330 (all 1935). ................................................................................. 34
[F] – Loewen Group Inc. v. United States (International Ctr. for Resolution of Disputes 2003) ........................ 34
[G] – Roper v. Simmons, 543 U.S. 551 (2005) ................................................................................................... 35
[H] – Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................................................... 35
[I] – Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer, Jan.
13, 2005 ............................................................................................................................................................... 35
[J] – Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective in
Constitutional Adjudication, 40 Idaho L. Rev. 1 (2003) ..................................................................................... 35
§ 6.02 – Important Themes ................................................................................................................................... 35
[A] – Mad Libs: _____ is the most important _____ in _____. ........................................................................... 35
[B] – What’s This Necessity Thing, Anyway? .................................................................................................... 35
[C] – Creditors ..................................................................................................................................................... 36
[D] – Arguments about Citing Foreign Sources = Proxy War ............................................................................. 36
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Chapter 1 – Constitution and Empire
§ 1.01 – Summary of Cases & Materials
[A] – Somersett’s Case, 98 Eng. Rep. 510 (K.B. 1772)
Description: James Somersett, a slave, was taken to England from Jamaica by his owner Charles Stewart. People
claiming to be Somersett’s godparents petitioned the King’s Bench for a writ of habeas corpus. The court ordered
Somersett’s release.
Holding (Mansfield): Because slavery is “[s]o high an act of dominion,” it could be lawful only if authorized by
positive law; because it is not, slavery is unlawful in England (although not the colonies).
[B] – Scott v. Sandford, 60 U.S. 393 (1856)
Description: Scott was a slave held at times in the Wisconsin Territory (now Minnesota), a free territory under the
Missouri Compromise. He argued that having been held in a free territory meant he had become free. The Court
dismissed for lack of subject matter jurisdiction.
Holding (Taney): (1) The framers did not intend that blacks be citizens of any state or of the United States and
therefore Article III does not allow them to bring suit; federal courts have no jurisdiction to hear such cases. (2) The
Missouri Compromise was unconstitutional because the federal government could only administer territories as a
trustee pending incorporation into the U.S. as a state; a provision forbidding slavery was not a power enumerated to
Congress and it would work unconstitutional takings under the Fifth Amendment.
[C] – Downes v. Bidwell, 182 U.S. 244 (1901)
Description: New York was charging duties on merchandise imported from Puerto Rico following Puerto Rico’s
becoming a U.S. territory after the Spanish-American War (as authorized by the Foraker Act). Downes, importer of
goods, argued that Art. I, §§ 8 and 9 forbade duties for imports from U.S. territories. The Court affirmed the lower
court’s judgment for Bidwell, holding the Foraker Act constitutional.
Holding (Brown): The Constitution does not necessarily apply in territories, it only protects the states that formed
the union; Congress can tailor what provisions apply to territories as the necessity of empire dictates.
Dissent (Harlan): The U.S. has a government of enumerated powers, whose authority derives from the
Constitution; Congress therefore cannot dispense with constitutional requirements when they are inconvenient or in
cases of necessity.
[D] – Johnson v. Eisentrager, 339 U.S. 763 (1950)
Description: Twenty-one German nationals held in Landsberg Prison, Germany, were convicted of war crimes for
continuing to assist the Japanese following Germany’s surrender. The Germans petitioned the U.S. government for
a writ of habeas corpus to review their conviction by military tribunal. The Supreme Court reversed the D.C. Cir.,
reinstating the dismissal for lack of subject matter jurisdiction by the D.D.C.
Holding (Jackson): There is no statutory jurisdiction for federal courts to hear habeas petitions filed by aliens who
have never been in the U.S. (see Ahrens v. Clark) and the Constitution does not require the U.S. to extend procedural
protections to aliens (see Downes v. Bidwell).
Dissent (Black): U.S. courts should be able to hear habeas cases anywhere the U.S. “imprisons any person in any
land we govern”; the location of the imprisonment should not be controlling when it comes to a person challenging
his detention. Id. at 798.
[E] – Ahrens v. Clark, 335 US. 188 (1948)
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Description: Habeas petitioners are a group of 120 Germans held at Ellis Island who filed their petitions in the
D.D.C. against Attorney General Clark. The federal habeas statute, 28 U.S.C. § 455 says district courts are
competent to grant habeas “within their respective jurisdictions.” The Germans argue that the D.D.C. is proper
because the “jailer” is the A.G. The Supreme Court affirmed the dismissal for want of subject matter jurisdiction.
Holding (Douglas): The statute conferring habeas jurisdiction, 28 U.S.C. § 455, requires that the petitioner be
within the jurisdiction of the court to which he petitions for the writ.
Dissent (Rutledge): A court with jurisdiction over the jailer should have jurisdiction to hear the petition because
the writ has always been viewed as a command to the jailer and because where a petitioner is not within any U.S.
jurisdiction he will be without redress for illegal imprisonment.
[F] – Reid v. Covert, 354 U.S. 1 (1957)
Description: Defendants Covert and Kinsella each allegedly murdered her husband while on military bases abroad.
The women were convicted of murder by court martial, jurisdiction per the U.C.M.J. The defendants petitioned for
the writ of habeas corpus in federal district court. The Court ordered the women released from military custody.
Holding (Black plurality): “The United States is entirely a creature of the Constitution[; i]ts power and authority
have no other source”; thus “the Constitution in its entirety” applies to the civilian spouses of military personnel
deployed abroad, and because courts martial do not meet the requirements of Art. III, § 2 and the Fifth and Sixth
Amendments, they cannot constitutionally exercise jurisdiction over civilians. Id. at 6–7, 18. The Insular Cases
don’t apply because (1) this case concerns U.S. citizens and (2) the continuing vitality of the Insular Cases is up in
the air.
Concurrence (Harlan): The Insular Cases are still vital, but counsel us “that the particular local setting, the
practical necessities, and the possible alternatives are relevant to a question of judgment” respecting what
constitutional protections apply; here the circumstances require application of the Constitution. Id. at 75.
[G] – United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
Description: Verdugo-Urquidez was suspected of leading a drug gang that smuggled marijuana into the U.S. and
was wanted in connection with the murder of a D.E.A. agent. The Mexican authorities allowed D.E.A. agents to
search the defendant’s property in Mexico. Defendant claims the search violated the Fourth Amendment, which he
asserts applied to any search conducted by the U.S. government.
Holding (Rehnquist): Constitutional protections do not apply to all acts the U.S. undertakes abroad as the Insular
Cases, Eisentrager, and the history and text of the Fourth Amendment demonstrate; Reid is distinguishable as
concerning U.S. citizens and is a plurality opinion with narrower concurrences.
Dissent (Brennan): “If we expect aliens to obey our laws, aliens should be able to expect that we will obey our
Constitution when we investigate, prosecute, and punish them . . . by placing respondent among those governed by
federal criminal laws and investigation him for violations of those laws, the Government has made him a part of our
community for purposes of the Fourth Amendment.” Id. at 284, 286.
[H] – Rasul v. Bush, 542 U.S. 466 (2004)
Description: Fourteen foreign nationals detained in the U.S. facility in Guantanamo Bay, Cuba, brought habeas
petitions through next friends in D.D.C. D.D.C. dismissed for want of subject matter jurisdiction, citing
Eisentrager; D.C. Cir. affirmed. Supreme Court reversed.
Holding (Stevens): The statute giving federal courts jurisdiction to hear habeas petitions, 28 U.S.C. § 2441, allows
the exercise of jurisdiction where the custodians are within the court’s jurisdiction. The jurisdictional holding in
Eisentrager relied upon Ahrens; Ahrens was overruled by Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 502
(1973); thus, Eisentrager no longer controls with respect to the habeas statute.
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Concurrence (Kennedy): Eisentrager is concerned with separation of powers and “requires an initial inquiry into
the general circumstances of the detention to determine whether the Court has the authority to entertain the
petition . . . there are circumstances in which the courts maintain the power and the responsibility to protect persons
from unlawful detention even where military affairs are implicated.” Id. at 487. The facts here include de facto
sovereignty over Guantanamo and indefinite detention; thus, here (but not in all habeas cases where a custodian is
within the court’s jurisdiction) the court has jurisdiction.
Dissent (Scalia): Eisentrager is directly on-point and was not overruled until right now; the court should not
disrupt such important precedent in a time of war. Ahrens expressly reserved the question of whether the habeas
statute applied to those detained abroad. Eisentrager was a statutory holding (contrary to the majority’s view here)
and answered the statutory question itself; thus, Eisentrager doesn’t rely on Ahrens. Braden did not overrule
Ahrens: “Braden stands . . . only [for] the proposition . . . [concerning] custody in multiple jurisdictions within the
United States . . . . Outside that class of cases, Braden did not question the general rule of Ahrens.” Id. at 495.
[I] – Boumediene v. Bush, 128 S.Ct. 2229 (2008)
Description: After the decision in Rasul, Congress passed 28 U.S.C. § 2241(e), which superseded the statutory
holding in Rasul. A group of alien detainees then brought a habeas petition to challenge their detention, arguing that
28 U.S.C. § 2441(e) violates the Suspension Clause, Art. I, § 9, Cl. 2.
Holding (Kennedy): U.S. courts have jurisdiction to hear the petitioners’ habeas petitions because the Detainee
Treatment Act provides an inadequate substitute procedure for habeas corpus and therefore works a suspension of
the writ inconsistent with the Suspension Clause. 28 U.S.C. § 2441(e) is unconstitutional. Federal courts should
hear habeas petitions only if there is undue delay in the military procedures or the military procedures are exhausted.
The Suspension Clause protections reach the detainees because Guantanamo is de facto U.S. territory and because
Eisentrager, Reid, and the Insular Cases indicate the Constitution follows the flag based on practical considerations.
Guantanamo is de facto U.S. territory; to hold otherwise allows the political branches the “power to switch the
Constitution on or off at will . . . leading to a regime in which Congress and the President, not this Court, say ‘what
the law is.’” Id. at 2259. The Suspension Clause reaches the detainees, thus the suitability of the replacement
procedure can be evaluated. The procedure here is insufficient, so it is unconstitutional.
Concurrence (Souter): Rasul basically did the work; this opinion only extends the reasoning to the constitutional
question. Additionally, the dissents ignore how long these detainees have been held (six years).
Dissent (Roberts): The procedures are an adequate safeguard—the Court has stepped in too early without letting
the military procedures (which are based on Hamdi v. Rumsfeld) run their course, so they have no basis to determine
that the procedures are inadequate.
Dissent (Scalia): Eisentrager controls and “held beyond any doubt [] that the Constitution does not ensure habeas
for aliens held by the United States in areas over which our Government is not sovereign”; occupied Germany was
no less under de facto U.S. control than Guantanamo. Id. at 2298–99. The reasoning from Rasul can’t do the work
here because it was about the applicability of a statute and this is a constitutional holding (contra Souter). The cases
from the Insular Cases through Verdugo-Urquidez stand for aliens having no substantive rights under the
Constitution. This is about aggrandizing the judicial branch.
§ 1.02 – Important Themes
[A] – Lawyers’ Special Skills
[1] – The Lawyer’s Question
Prof. Feldman (and Prof. Issacharoff) argues that “The Lawyer’s Question” is ‘Who should decide?’—this is what
distinguishes lawyers from other professions. This question is implied by the law’s focus on procedure, the
distinction between law and fact, arguments respecting institutional competency, and other uniquely legal issues.
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[2] – “Artificial Reasoning”
Natural law was believed to relate to reason, and “reason . . . meant the artificial reason of common lawyers, that is,
the expert ability to reason dialectically in Aristotelian fashion and to ‘find out the truth by argument and
disputation.’ Sir Edward Coke, chief justice of the Court of Common Pleas and later of the King’s Bench, famously
argued that such ‘artificial reasoning’ was what distinguished the professional expertise of the common lawyer from
the mere opinion of the sovereign. Not by chance, Coke was dismissed from the bench by James I in 1616, and
later, as a member of Parliament, played an important role in the ongoing struggle concerning the prerogatives of the
Crown.” Victoria Ann Kahn & Lorna Hutson, Rhetoric and Law in Early Modern Europe 11 (2001).
[B] – The History and Origins of the Writ of Habeas Corpus
Note: this history is excerpted from Habeas corpus, http://en.wikipedia.org/w/index.php?title=Habeas_corpus (last
visited Mar. 25, 2009).
“Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King
Edward I. . . . [¶] The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus
Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been
passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas
corpus.
“Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and
commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts
of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a
result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the
petition to a judge. [¶] Since the 18th century the writ has also been used in cases of unlawful detention by private
individuals, most famously in Somersett's Case . . . . [¶] The privilege of habeas corpus has been suspended or
restricted several times during English history, most recently during the 18th and 19th centuries.”
In the U.S., “The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court
inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether
the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the
defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody
such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement
pursuant to a deportation proceeding.”
[C] – Sovereignty
Under natural law, sovereignty was thought to arise from the people. In the U.S., there are arguments that the
people are sovereign. See, e.g., Scott, 60 U.S. at 404 (“The words ‘people of the United States’ . . . describe the
political body who, according to our republican institutions, form the sovereignty, and who hold the power and
conduct the Government through their representatives”).
Others argue that the Congress is sovereign. An assertion that the President can seize property upon the declaration
of war “must assume for its basis . . . a rule which acts directly upon the thing itself by its own force, and not
through the sovereign power.” Brown v. United States, 12 U.S. at 128 (see §2.01[F], infra). This assumes the
executive is not sovereign, and because it is Congress that would authorize this power, Justice Marshall at least
suggests that Congress is the sovereign.
Story in his dissent in Brown suggests that sovereignty is split between the President and Congress, at least during
wartime. “There is no act of the legislature defining the powers, objects or mode of warfare: by what rule, then,
must [the President] be governed? I think the only rational answer is by the law of nations as applied to a state of
war. Whatever act is legitimate, whatever act is approved by the law, or hostilities among civilized nations, such he
may, in his discretion, adopt and exercise; for with him the sovereignty of the nation rests as to the execution of the
laws. Id. at 149.
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Finally, under Schmitt’s view, he who declares the exception is the sovereign.
There is also a distinction between de facto and de jure sovereignty. “When we have stated that sovereignty is a
political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of
dominion or power, but sovereignty in the narrow, legal sense of the term, meaning a claim of right. Indeed, it is not
altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the [de facto]
sovereignty[] of another.” Boumediene, 128 S.Ct. at 2252–53 (citations omitted).
[D] – Natural Law
Natural law stands opposed to positive law, and is law derived from nature that is therefore the same for everyone,
everywhere. Natural law forms an important part of the basis of the common law system. In this regard, legal
positivism and realism stand opposed to a natural law view of the common law.
“[T]here is no [transcendental] body of law. The fallacy and illusion that I think exist consist in supposing that there
is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts
speak of it today does not exist without some definite authority behind it. Black & White Taxicab & Transfer Co. v.
Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting). Holmes’ positivist
streak traces to thirty years earlier, when he wrote
“I think it desirable . . . to point out and dispel a confusion between morality and law, which sometimes
rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail
with-out reaching the point of consciousness. You can see very plainly that a bad man has as much reason
as a good one for wishing to avoid an encounter with the public force, and therefore you can see the
practical importance of the distinction between morality and law. A man who cares nothing for an ethical
rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid
being made to pay money, and will want to keep out of jail if he can.” Oliver Wendell Holmes, The Path of
the Law, 10 Harv. L. Rev. 457, 459 (1896–97).
Courts have also distinguished between “natural rights” and “remedial rights.”
“We suggest, without intending to decide, that there may be a distinction between certain natural rights,
enforced in the Constitution by prohibitions against interference with them, and what may be termed
artificial or remedial rights, which are peculiar to our own system of jurisprudence. Of the former class are
the rights to one's own religious opinion and to a public expression of them, or, as sometimes said, to
worship God according to the dictates of one's own conscience; the right to personal liberty and individual
property; to freedom of speech and of the press; to free access to courts of justice, to due process of law and
to an equal protection of the laws; to immunities from unreasonable searches and seizures, as well as cruel
and unusual punishments; and to such other immunities as are indispensable to a free government. Of the
latter class are the rights to citizenship, to suffrage, and to the particular methods of procedure pointed out
in the Constitution . . . .” Downes, 182 U.S. at 282–83.
[E] – The Tension between Limited Powers and Empire
[1] – Does the Constitution Follow the Flag?
Scott was a “perhaps the most profoundly anti-colonial opinion in the U.S. reporters,” according to Prof. Feldman:
“[T]he power of Congress over the person or property of a citizen can never be a mere discretionary power
under our Constitution and form of Government. The powers of the Government and the rights and
privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory
becomes a part of the United States, the Federal Government enters into possession . . . limited by the
Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and
act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a
Territory of the United States, put off its character, and assume discretionary or despotic powers which the
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Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the
United States . . . and the Federal Government can exercise no power . . . beyond what that instrument
confers, nor lawfully deny any right which it has reserved.” Scott, 60 U.S. at 449–450.
In contrast, at the time it was decided, Downes appeared to hold that no particular constitutional rights necessarily
applied in U.S. territories. Id. at 283–87.
In Eisentrager, Jackson writing for the majority and Black in dissent each cited Downes for different propositions.
The majority asserted that with respect to the application of constitutional protections abroad, “[n]o decision of this
Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244.” Eisentrager, 339 U.S. at 784–85.
The dissent applies the case differently: “If our country decides to occupy conquered territory either temporarily or
permanently . . . [p]robably no one would suggest, and certainly I would not, that this nation either must or should
attempt to apply every constitutional provision of the Bill of Rights in controlling temporarily occupied countries.
But that does not mean that the Constitution is wholly inapplicable in foreign territories that we occupy and govern.
See Downes v. Bidwell, 182 U.S. 244.” Eisentrager, 339 U.S. at 796–97.
However, in light of Boumediene, the holding of the Insular Cases is something more like the Downes dissent. That
is, the U.S. government is one of limited powers that cannot exercise authority over territories it controls except in
keeping with the Constitution.
[2] – Necessity & Empire
The Downes court wrote that “the power to acquire territory by treaty implies not only the power to govern such
territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall
be in what Chief Justice Marshall termed the ‘American Empire.’ There seems to be no middle ground between this
position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens . . . . If such
be their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to
the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits,
traditions and modes of life, shall become at once citizens of the United States.” 182 U.S. at 279–80.
This implies that creating an empire carries with it a necessity rationale that can be used to override limitations on
government power.
[G] – Guantanamo’s Rationale
To put the line of cases from this section together, Guantanamo was based upon Eisentrager and therefore Ahrens,
plus the Insular Cases. The Bush administration realized that Guantanamo, like Landsberg Prison in Germany, was
under the control of the U.S. but was de jure Cuban territory. This situation was thought analogous to the status of
Landsberg Prison in Eisentrager and so the administration believed that the Eisentrager reasoning would apply to
the Guantanamo detainees: provided that they were not U.S. citizens and had never been within the U.S., the
detainees would have no habeas rights.
Even if Guantanamo was taken to be U.S. territory, the Bush administration still had an out. Under Downes, the
administration thought that no constitutional protections necessarily applied in U.S. territories.
There was thus a two-part theory: (1) The Guantanamo detainees have no rights under the U.S. Constitution, see
Downes. (2) Even if they do, they can’t petition for habeas to vindicate those rights, see Eisentrager.
[H] – Ideology and the Justices
[1] – Strict Construction and Pragmatism
There has been an interesting shift in the styles of statutory construction / constitutional interpretation and the
politics that perspective has served. Today we’re used to the textual originalism of Scalia and Thomas as
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representing the right wing of the Court. However, it was at one time a liberal jurisprudence. Through the 19th and
much of the 20th century, originalism was rights-expanding and anti-colonial. In contrast, pragmatic / necessitybased / “Grand Style” jurisprudence was facilitative of government authority and imperial.
Chief Justice Taney in Scott wrote an opinion that was disgraceful and bigoted, but was in another sense
“profoundly anti-colonial.” It was so because it sought to limit governmental authority to the powers enumerated in
the Constitution. This would hobble the ability of the U.S. to hold territories abroad. This strain of though would
appear in (the elder) Harlan’s Downes dissent, which sought to bind the government to the Constitution when acting
abroad. It turned up in the Black (and Douglas(???) – he wrote Ahrens) dissent in Eisentrager (and earlier in
Rutledge’s dissent in Ahrens). Black wrote the plurality opinion in Reid, again arguing that the U.S. was bound by
the Constitution.
In contradistinction, the majority in Downes had to undermine Scott and rely on a pragmatic, necessity-based
argument to justify American colonialism. Similarly, Jackson, writing for the majority in Eisentrager, noted the
impracticability of allowing detainees to challenge military commanders in the field as an important consideration in
denying habeas rights to detainees.
In Reid, the unanimous court split into two ideological camps: Black, writing the plurality opinion, questioned the
continuing vitality of the Insular Cases. (He might have cited Scott, except for the whole nasty business of his
having been a Klan member.) Harlan (the younger) and Frankfurter, concurring separately, grounded their votes
more narrowly, arguing that the Insular Cases were still applicable but must be based upon an instrumental, due
process-like determination of what rights extend under what circumstances.
By the time the Court heard Verdugo-Urquidez, the interpretive methods of liberal and conservative Justices had
more or less flipped. Rehnquist, writing for the majority and opposing limits to the government’s authority to act
abroad based his arguments upon text and precedent. In contrast, Brenan, joined by Marshall, argued from concepts
of fairness, reciprocity, and the rule of law.
[2] – The Role of the Courts
The current tension between Justices Scalia and Kennedy has its roots in Plato and Aristotle. Plato favored “the law
of men”—a case-by-case, pragmatic approach to the law. Aristotle preferred “the rule of law,” because he believed
that there was no guarantee of a philosopher king upon whom society can rely always to rule justly.
This tension plays out in Boumediene. Scalia wrote, “[w]hat drives today’s decision is . . . an inflated notion of
judicial supremacy. . . . Our power ‘to say what the law is’ is circumscribed by the limits of our statutorily and
constitutionally conferred jurisdiction.” Id. at 2302–03.
Kennedy appears to view the Court’s “saying what the law is” as both necessary and expansive. Kennedy was
troubled by the political branches avoiding judicial review through jurisdictional slight of hand. “Our basic charter
cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire,
dispose of, and govern territory, not the power to decide when and where its terms apply. . . . To hold the political
branches have the power to switch the Constitution on or off at will . . . would permit a striking anomaly in our
tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what
the law is.’” Id. at 2259. Scalia reframes Kennedy’s concern as not tolerating “areas in which the legal
determinations of the other branches will be (shudder!) supreme.” Id. at 2303.
Chief Justice Marshall was also a proponent of a powerful judiciary—indeed, he articulated the principle of judicial
review in Marbury v. Madison.
A similar tension occurs in Foster v. Neilson, 27 U.S. 253 (1829) (see Ch. 2, infra). There, a treaty was held not to
be self-executing. This implies that facially self-executing treaties may nevertheless be subject to judicial review,
which implies that even a “self-executing” treaty may be self-executing only after a court passes on it.
[I] – SCOTUS Justices: A Soap Opera
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Prof. Feldman outlined a few interesting anecdotes about various Justices. First, Justice Jackson and Justice Black
hated each other with intensity unequalled in the Court’s history. Jackson believed that Black’s decisions were
motivated by personal preferences. See Wikipedia, Robert H. Jackson,
http://en.wikipedia.org/wiki/Robert_H._Jackson (as of Apr. 30, 2009, 20:41 GMT). The animosity deepened when
Black refused to recuse himself from Jewell Ridge, a case involving a former law partner of Black’s. Id. Jackson
also believed Roosevelt would appoint him Chief Justice, but Truman instead appointed Vinson to avoid
entanglement in the Black / Jackson feud; Jackson sent several wires from Nuremberg. Id.
Justice Douglas was aligned with the Black faction, and his “concurrence” in Hirota might be seen as a dig at
Jackson and Truman. In 1940, Roosevelt’s running mate Henry Wallace corresponded with a strange “guru”; when
the Republicans threatened to expose him, the Democrats arranged a truce by agreeing not to release information of
Republican candidate’s Wendell Willkie’s extramarital affair.
In the 1944 election, Roosevelt sought to replace Wallace and passed over Douglas for Truman (at the behest of the
Democratic party). In 1948, Douglas campaigned briefly for the nomination but withdrew; then Truman offered for
Douglas to be his running mate, which Douglas refused. See Wikipedia, William O. Douglas,
http://en.wikipedia.org/wiki/William_O._Douglas (optional description here) (as of Apr. 30, 2009, 21:08 GMT).
Justice Black had been a member of the Ku Klux Klan while running for Senate in Alabama.
Justice Scalia was long irked by Justice O’Connor, whom he viewed as mushy minded and unprincipled. However,
after O’Connor left the Court and Justice Kennedy became the swing vote (and tacked left), Scalia realized that
O’Connor was a pretty swell lady, all things considered. Scalia realized that although he was probably smarter, a
better writer, more principled, and all-around a more capable Justice than Kennedy, he would nevertheless be
relegated to writing “numerous fiery dissents and concurrences and a few idiosyncratic majority opinions, while
Kennedy will be remembered as the most important liberal Justice in the late-20th and early-21st centuries.”
[J] – Constitutional Rights without Remedies?
While legal realists and other legal philosophies consider a right without a remedy as no right at all, there are
numerous examples of such rights in the cases. In the habeas cases the absence of jurisdiction precludes the right to
challenge detention. In the cases involving the V.C.C.R., see Ch. 5, infra, the Court presently holds that failure to
comply with that treaty is a violation of international law that carries with it no remedy.
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Chapter 2 – International Law?
§ 2.01 – Summary of Cases & Materials
[A] – The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812)
Description: French warship shows up in Philadelphia port. McFaddon (and Greetham) claim it’s their ship
(converted to a warship) and that Napoleon stole it at sea. Court dismisses case for lack of jurisdiction.
Holding (Marshall): U.S. courts cannot hear cases concerning a warship belonging to foreign sovereigns operating
in U.S. waters because such a ship would enter only under an implied waiver of U.S. jurisdiction, and while this
waiver might be rescinded, this must be done expressly by the government.
[B] – United States v. Schooner Peggy, 5 U.S. 103 (1801)
Description: The U.S. captured the Schooner Peggy. After a judgment by the Circuit Court but before the Supreme
Court decision, the U.S. signed a treaty with France pertaining to “[p]roperty captured, and not yet definitively
condemned . . . .” Government wants the booty, original owners maintain that the treaty is effective and that the
property was not definitively condemned so long as the case was on appeal. Original owners win.
Holding (Marshall): Where a treaty comes into force that affects the rights of the litigants, a court of appeals will
apply the treaty the same as any law changed law.
[C] – The Antelope, 23 U.S. 66 (1825)
Description: Privateer ship carrying stolen slaves was captured by the U.S. Several parties claimed the slaves: the
original owners (Spain and Portugal), the Antelope’s captain, the U.S. captain who captured her, and the U.S. Spain
and Portugal get their slaves back.
Holding (Marshall): The slave trade is not prohibited by the law of nations because it is still customary in many
nations; thus, in applying international law, U.S. courts are bound to recognize the slave trade as lawful among
countries practicing it.
[D] – Vattel, The Law of Nations (1758, English edition of 1854) lv–lxvi
Recognizes the law of nations as law appertaining to the relations between one nation-state and another (i.e., not
individual). Argues “the law of Nations is originally no other than the law of Nature applied to Nations.” Id. at lvi.
Claims that one nation cannot enforce the law of nations as against another: “Nations being free and independent,
though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to
acquiesce in it, when it does not infringe upon their perfect rights.” Id. at lix (cf. The Antelope).
[E] – Joseph Story, “Law of Nations,” in Encyclopedia Americana vol. ix (1843) 141–49
Story begins with Vattel, argues that the law of nations, in addition to concerning relations between states (external
law of nations, a.k.a. international law) also concerns the relation between the sovereign and the people (internal law
of nations, a.k.a. the public law of state). Story then lists a series of principles concerning each of the internal and
external law of nations.
[F] – Brown v. United States, 12 U.S. 110 (1814)
Description: U.S. government seizes British property after War of 1812 begins. Owner challenges condemnation,
arguing that the declaration of war by itself does not authorize the executive to seize enemy property found on U.S.
soil. Brown gets the property back.
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Holding (Marshall): The declaration of war, by itself, does not authorize the executive to seize property found on
U.S. soil at the beginning of war; that power would arise only from express authorization by Congress, either in the
declaration of war itself or in a subsequent action. (One additional argument: “war,” Art. I, § 8, Cl. 11, may be
definable only with reference to the law of nations.)
Dissent (Story): The President may take any action that Congress has not forbade and that is consonant with the
law of nations in conducting a war; thus, he may (subject to obloquy) seize the property because this is recognized
by the law of nations. “By the constitution, the executive is charged with the faithful execution of the laws; and the
language of the act declaring war authorizes him to carry it into effect. In what manner, and to what extent, shall be
carry it into effect? What are the legitimate objects of the warfare which he is to wage? There is no act of the
legislature defining the powers, objects or mode of warfare: by what rule, then, must he be governed? I think the
only rational answer is by the law of nations as applied to a state of war.” Id. at 149.
[G] – Foster v. Neilson, 27 U.S. 253 (1829)
Description: Both parties claim a tract of land in Louisiana. Foster was granted the land by the Spanish governor,
Neilson claims that the land transferred to France (then the U.S.) before the grant to Foster. This turns on whether
the Treaty of St. Ildefonso is self-executing. Neilson keeps the land because the treaty was not self-executing.
Holding (Marshall): In the U.S. (unlike other countries), treaties can be self-executing – provided the language of
the treaty makes this clear; otherwise, treaties are contracts for the legislature subsequently to pass laws.
[H] – United States v. Percheman, 32 U.S. 51 (1833)
Description: Percheman claims title to 2,000 acres granted by the Spanish Governor, covered by the treaty of St.
Ildefonso. Court this time (unlike Foster v. Neilson, supra) looks at Spanish language version of the treaty, this time
holds that the treaty is self-executing.
Holding (Marshall): The treaty of St. Ildefonso actually is self-executing.
[I] – The Paquete Habana, 175 U.S. 677 (1900)
Description: Two Cuban coastal fishing vessels are at sea as the Spanish-American war begins. The U.S. captures
the ships as prizes of war. Original owners sue. SCOTUS rules for original owners.
Holding (Gray): The President is bound by customary international law (absent an act by Congress) because
“[i]nternational law is part of our law, and must be ascertained and administered by the courts . . . .” Id. at 700. The
sources of international law include “the customs and usages of civilized nations; and, as evidence of these, to the
works of jurists and commentators . . . not for the speculations of their authors concerning what the law ought to be,
but for trustworthy evidence of what the law really is.” Id.
Dissent (Fuller): Our holding in Brown v. United States forbids customary international law to act directly and not
through the sovereign; thus, the President is not bound by international law.
[J] – Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)
Description: Plaintiff Filatritga’s son was allegedly tortured to death by Pena, acting in an official capacity while in
Paraguay. Both parties happen to be in the U.S., Filartiga sues under the Alien Tort Statute, 28 U.S.C. § 1350,
which states “The district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.” Supreme Court reverses dismissal for
lack of subject matter jurisdiction.
Holding (Kaufman): Torture, when committed by a person acting under color of state authority, is a violation of
the law of nations (as shown by commentators and U.N. resolutions).
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[K] – Tel Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984)
Description: Plaintiffs were survivors of (mostly) Israeli citizens murdered during an attack on a civilian bus. The
D.D.C. dismissed for lack of subject matter jurisdiction. The D.C. Cir. upholds the dismissal in a per curiam
decision with each of the three judges concurring separately.
Concurrence (Edwards): The law of nations does not apply to individuals not acting under color of state authority
except with a few crimes, e.g. piracy – torture and terrorism are not in this category.
Concurrence (Bork): The Alien Tort Statute creates jurisdiction but not a cause of action for torts in violation of
international law; causes of action are probably available only for Blackstone’s enumerated offenses: piracy, crimes
involving ambassadors, and violations of safe-conducts.
[L] – Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1996)
Description: Plaintiffs were subject to brutal treatment by Karadzic, the President of a Bosnian-Serb republic inside
Bosnia-Herzegovina known as Srpska and mostly unrecognized by other nations. Karadzic was served inside the
U.S. and plaintiffs assert jurisdiction under the Alien Tort Statute for acts of torture, genocide, and war crimes.
Karadzic argues that he was not a state actor (as his state is unrecognized) and that he cannot as an individual violate
the law of nations. Second Circuit reverses dismissal by S.D.N.Y. with respect to genocide and war crimes.
Holding (Newman): Individuals can violate the law of nations; Filartiga didn’t reach this question and Edwards
recognized in Tel-Oren that piracy violates the law of nations. The community of nations is unified against both
genocide and war crimes, but not torture—thus, an individual can violate the law of nations by committing genocide
or war crimes.
[M] – Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984)
Argues that customary international law is self-executing federal law in the U.S.
[N] – Bradley & Goldsmith, Customary International Law as Federal Common Law: A Critique of
the Modern Position, 110 Harv. L. Rev. 815 (1997)
Argues that customary international law is not part of U.S. law and the courts cannot apply it without authorization
from the political branches.
[O] – Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)
Description: Alvarez was alleged to have assisted in the torture-murder of a D.E.A. agent in Mexico. The U.S.
collaborated with a group of Mexican nationals, including Sosa, to have Alvarez abducted and transported into the
U.S. Alvarez was tried and acquitted. Subsequently, he brought a tort suit against Sosa for the kidnapping. The
Supreme Court ruled that the ATS did not allow a cause of action on these facts.
Holding (Souter): “[T]he statute is in terms only jurisdictional, [but] we think that at the time of enactment the
jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and
recognized at common law.” Id. at 712. “[F]ederal courts should not recognize private claims under federal
common law for violations of any international law norm with less definite content and acceptance among civilized
nations than the historical paradigms familiar when § 1350 was enacted. . . . And the determination whether a norm
is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of
judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at
731–33.
Concurrence (Scalia): “I would subtract [the majority’s] reservation of a discretionary power in the Federal
Judiciary to create causes of action for the enforcement of international-law-based norms.” Id. at 739. This implies
15
that “the consensus of states on any subject[] can be used by a private citizen to control a sovereign’s treatment of its
own citizens within its own territory.” Id. at 749–50.
§ 2.02 – Important Themes
[A] – The Law of Nations, the Law of Nature, and Individuals
Story argues that “the law of Nations is originally no other than the law of Nature applied to Nations.” Id. at lvi.
This reflects a conception of law that legal positivism and Erie would repudiate. Thus, as indicated by Tel-Oren,
Sosa, etc, this conception fails to address the question of authority.
Judge Edwards wrote, “the individual’s status in international law has been in flux . . . . Through the 18th century
and into the 19th, writers and jurists believed that rules of international law bound individuals as well as states. . . .
In the 19th century, the view emerged that states alone were subjects of international law, and they alone were able
to assert rights and be held to duties devolved from the law of nations. Under that view – which became firmly
entrenched both in doctrine and in practice . . . individual rights existed only as rights of the state . . . and could be
asserted, defended or withdrawn by the state. . . . [¶] In this century, once again writers have argued that both the
rights and duties of international law should be applied to private parties. Tel-Oren v. Libyan Arab Republic, 726
F.2d 774, 794 (D.C. Cir. 1984).
The transition in the 19th century appears to coincide with a shift from the term “law of nations” to the term
“international law,” notes Feldman. See Story, supra, at 141.
[B] – Treaties
[1] – Generally
Treaties relate both to U.S. law and the Constitution. Treaties create U.S. law, either upon ratification (if selfexecuting) or upon Congress passing laws to enact the treaty. The Constitution gives the executive and Senate the
authority and procedure by which to ratify a treaty. U.S. Const., Art. II, § 2, Cl. 2. Because the treaty is law, it
preempts state law via the supremacy clause. Also, a treaty inconsistent with existing U.S. law is sufficient to
supersede that law.
Treaties exist simultaneously as positive international law, private law between the U.S. and foreign citizens, and
public law. The U.S. has to follow treaties unless it definitively withdraws (divorce is okay but no cheating).
There are some strategic aspects in the Constitution’s treaty procedures. First, the President need not gain approval
from the House of Representatives for a treaty. This may imply that the framers did not want to place international
affairs in the control of the most politically accountable branch. Second, the President does not have plenipotentiary
powers when negotiating treaties. Thus, on the one hand he has some rhetorical strength in approaching the Senate
(“I’ve already gotten them to agree to this treaty and I’ve given my word…”) while at the same time having the
ability to raise the Senate as a heavy in negotiating the most favorable deal for the U.S. possible.
[2] – Self execution
Treaties may be self-executing in the U.S. This is unusual among nations, most of which treat all treaties as
contracts for the legislature to take subsequent action. See Foster, 27 U.S. at 314. A treaty is self-executing if it is
clear from its language: “Our constitution declares a treaty to be the law of the land. It is, consequently, to be
regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of
any legislative provision.” Id.
See § 1.02[H][2], supra, regarding judicial intervention in self-executing treaties. See ch. 5, infra, for the modern
changes to self-execution in the wake of Sanchez-Llamas and Medellin.
[C] – Who / What is the U.S. Sovereign?
16
See § 1.02[F], supra.
[D] – Sources of Customary International Law
Justice Marshall in the Paquete Habana gives opinio juris as the source for customary international law. “[W]here
there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by
years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which
they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what
the law ought to be, but for trustworthy evidence of what the law really is.” Id. at 700.
This creates a problem in distinguishing between descriptive and normative pronouncements by the jurists and
commentators. Cf. Restatement (Second) Torts § 402A (a “Restatement” of the law that essentially invented the
field of strict products liability).
[E] – CIL as U.S. law
[1] – Pre-Erie
The most important line of the Supreme Court’s international law jurisprudence, written by Marshall, appears in the
Paquete Habana, 175 U.S. at 700: “International law is our law.” This pronouncement gave explicit recognition to
an assumption guiding earlier decision; cf. The Antelope, The Schooner Exchange, and Brown.
Story’s dissent in the Paquete Habana maintained that the President was not bound by international law unless
Congress enacted a statute that reflected the principle of international law. While “the law of nations” does not
appear in the supremacy clause or Art. III, the federal courts could exercise common law authority
So the law stood until Mr. Tompkins went for a stroll next to a railroad track.
[2] – Erie and International Law
Post-Erie, some scholars argue that customary international law is and should be part of U.S. federal law. See, e.g.,
Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1559–60 (1984); Philip C.
Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Intl. L. 740 (1939)
(“[W]hatever the specific grounds for disposing of any individual case, any attempt to extend the doctrine of the
Tompkins case to international law should be repudiated by the Supreme Court”).
Henkin argues that in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964), the Supreme Court circumvented
Erie. Henkin, supra at 1560. The Sabbatino court wrote, “It seems fair to assume that the Court did not have rules
like the act of state doctrine in mind when it decided Erie R.[R.] Co. v. Tompkins. Soon thereafter, Professor Philip
C. Jessup, now a judge of the International Court of Justice, recognized the potential dangers were Erie extended to
legal problems affecting international relations. He cautioned that rules of international law should not be left to
divergent and perhaps parochial state interpretations. His basic rationale is equally applicable to the act of state
doctrine.” Id. at 425. Because the Supreme Court affirmed the act of state doctrine, the Court must also accept Prof.
Jessup’s pronouncement, the reasoning goes.
Henkin argues that the judiciary’s power to apply customary international law arises from the framers’ assumption
that it was binding, and the phrase “laws of the United States” in both the supremacy clause and Article III. Henkin,
supra at 1566.
Critics of this position argue that customary international law was based upon general common law, not post-Erie
federal common law. Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common
Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 849 (1997). Erie declared that “[t]here is no federal
general common law,” 304 U.S. at 78.
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Thus, “Erie requires federal courts to identify the sovereign source for every rule of decision. Because the
appropriate ‘sovereigns’ under the U.S. Constitution are the federal government and the states, all law applied by
federal courts must be either federal law or state law. After Erie, then, a federal court can no longer apply CIL in the
absence of some domestic authorization to do so, as it could under the regime of general common law.” Bradley &
Goldsmith, supra at 852–53. The critics point out that customary international law is not mentioned in the
supremacy clause or Article III, and that Congress has never incorporated it by statute. Id. at 856–57.
One additional argument for pro-customary international law scholars may be to suggest that Erie has been
misinterpreted. See generally Craig Green, Repressing Erie’s Myth, 96 Cal. L. Rev. 595 (2008).
Behind the rhetoric, Feldman notes that “customary international law is part of the liberal plot.” International law
tends to be “wildly progressive,” and because the Paquete Habana and other cases would tap the work of those
writing professedly on the law (i.e., law professors), the liberal academy loves it.
[F] – Act of State & Political Question Doctrines
The political question and act of state doctrine are both principles rooted in the separation of powers. Each
recognizes that the political branches are more competent than the courts to handle certain issues.
“The act of state doctrine in its traditional formulation precludes the courts from inquiring into the validity of the
public acts a recognized foreign sovereign power committed within its own territory.” Sabbatino, 376 U.S. at 401.
“Prominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.” Baker v. Carr, 369 U.S. 186, 217 (1962).
Prof. Feldman argues that the political question doctrine is likely done with Bush v. Gore, 531 U.S. 98 (2000).
[G] – The Alien Tort Statute Today
After the decision in Sosa, both sides seem to claim (limited) victory. Fans of customary international law say that
the Court could have shut the door on the Alien Tort Statute after Erie but didn’t. They also point to Scalia’s
dissent, which claims that the majority has created “discretion” in the federal courts to create new causes of action.
See Sosa, 542 U.S. at 749–50.
Critics of customary international law in the U.S. point out that Alvarez lost the case, and that the majority’s
requirement that the alleged violations of international law be as definite as the Blackstone three functionally mean
that causes of action under the Alien Tort Statute are few and far between.
[H] – The Blackstone Three
As described in the line of cases concerning the Alien Tort Statute, Blackstone listed three specific offenses that
individuals could commit in violation of the law of nations. Souter described “a sphere in which . . . rules binding
individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred
to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England:
violation of safe conducts, infringement of the rights of ambassadors, and piracy. An assault against an ambassador,
for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an
issue of war.” Sosa, 542 U.S. at 715 (citations omitted).
[I] – The Relationship Between our Constitution and the International Order
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In brief summary, the relationship between our Constitution and the International Order is as follows. First,
customary international law may be part of our law. When federal courts had carte blanche to develop a common
law, there was no question of authority. With Erie, however, federal courts may no longer be able to develop a
general common law. Thus, the authority to integrate customary international law into U.S. law is in doubt.
The Alien Tort Statute appears to give federal courts statutory authority to hear claims, at least tort claims.
However, Sosa holds that the Alien Tort Statute does not create a cause of action and instead is only jurisdictional.
While the Torture Victim Protection Act provides a cause of action in some circumstances, see Sosa, 542 U.S. at
728, the precise contours of what claims state a cause of action remain murky.
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Chapter 3 – Torture: An Interlude
§ 3.01 – Summary of Cases & Materials
[A] – Geneva Conventions, Common Article III
Common Art. III binds a contracting party, fighting in a war “occurring in the territory of one of the High
Contracting Parties,” to apply certain provisions including refraining from torture.
[B] – Memo from Jay Bybee to Alberto Gonzales (Aug. 1, 2002)
A Office of Legal Counsel memo prepared for the CIA and OGA to discuss what types of interrogation techniques
the Agencies could undertake. It began by discussing the meaning of torture within 18 U.S.C. §§ 2340–2340A and
defined it as only severe pain or suffering, either physical or mental. It then compared the statute to U.N.
conventions and U.S., European, and Israeli judicial interpretations of the word “torture.” It concluded by
contemplating what defenses may be available, including both self-defense and necessity.
[C] – McCain Torture Act
Appears to prohibit “inhuman and degrading treatment.” However, it may be what Prof. Feldman characterized as a
“fake statute” because it refers to the standards of the Fifth, Eight, and Fourteenth Amendments, and therefore may
be exactly equivalent to Regan’s “understanding” with respect to the Convention Against Torture. See Bybee Memo
p. 187.
[D] – Congressional testimony—Gonzalez, Mukasey, and Holder
Senators were concerned with torture, specifically waterboarding. All three nominees succeeded in answering
questions clearly, refusing to speculate or interpret the meaning of torture. This may have been both to keep the
door open for future use of enhanced techniques and also to avoid statements that might lead to previous acts being
prosecuted.
[E] – Committee against Torture, Israel High Court Case
Description: The Public Committee Against Torture in Israel brought suit to stop the General Security Service
(GSS) from engaging in techniques that the Committee argues are torture: violently shaking prisoners, the
“Shabach” position (prisoner with arms handcuffed awkwardly behind a low, forward-leaning chair, hooded, loud
music played), tight handcuffs, and the “Frog Crouch” (prisoner forced to lean against wall on tiptoes and held up by
fingertips). The Court ruled that the GSS cannot authorize the methods although a necessity defense is possible if a
GSS interrogator employs the methods.
Holding (Barak): “The power to interrogate granted to the GSS investigator is the same power the law bestows
upon the ordinary police investigator . . . [his] duty . . . is to conduct the interrogation according to the law, . . .
subject to the same restriction applicable to police interrogators”; this law does not allow torture. Id. at 29, ¶ 32.
The necessity defense cannot be used prospectively to authorize (i.e., render non-criminal) torture, only
retrospectively as a defense to a crime.
§ 3.02 – Important Themes
[A] – Attorney Responsibilities
[1] – Responsibility for Everything You Write or Sign
Prof. Feldman points out that as a lawyer, you must be prepared to take responsibility both for everything you write
and everything you sign. For example, the “Bybee Memo” was in fact likely written by John Yoo. Bybee signed
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the memo and would likely have had his career ruined but for his lifetime appointment to the bench before its
release.
John Yoo is now a professor at the U.C. Berkeley School of Law and his critics have attempted to force him out.
Marty Lederman, Convictions: Yoo, Tenure, and the Academy, Slate, April 11, 2008,
http://www.slate.com/blogs/blogs/convictions/archive/2008/04/11/yoo-tenure-and-the-academy.aspx.
[2] – Lawyers as Ethicists
Prof. Feldman argues that there has been a shift in how lawyers view their job. Until a decade or two ago, lawyers
saw their role as providing advice and counsel not only in answering detailed legal questions but more generally as
offering a perspective on the individual, corporation, or government entity’s overall operations. This included both
technical and ethical guidance. Part of a lawyer’s appeal, then, was her ability to give prudent advice over the long
term.
In the last decade or two, however, lawyers have become more commodified, hired for short-term work, and focused
on smaller details of the enterprise in which they work. For these reasons, lawyers are less likely to give ethical
advice or put their feet down when their clients’ behavior crosses an ethical line. This, says Feldman, is unfortunate
and we (i.e., HLS students / lawyers of tomorrow) should resist this trend.
[B] – What is Torture?
Most definitions involve “severe pain.” The Bybee memo took this much further, requiring “pain that is difficult to
endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious
physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pin or
suffering to amount to torture . . . it must result in significant psychological harm of significant duration, e.g., lasting
for months or even years. We conclude that the mental harm also must result from one of the predicate acts
listed . . . .” Id. at 172. This definition has since been repudiated. It is less clear precisely to what limits the U.S.
will go today.
[C] – Unitary Executive
Taken from Wikipedia, Unitary executive theory, http://en.wikipedia.org/wiki/Unitary_executive_theory (as of May.
2, 2009, 14:31 GMT).
The Vesting Clause of Article II provides that “[t]he executive Power [of the United States] shall be vested
in a President of the United States of America.” Proponents of the unitary executive theory argue that this
language, along with the Take Care Clause (“The President shall take care that the laws be faithfully
executed . . .”), creates a "hierarchical, unified executive department under the direct control of the
President.”
The general principle that the President controls the entire executive branch was originally rather
innocuous, but extreme forms of the theory have developed. John Dean explains: “In its most extreme
form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President
what to do or how to do it, particularly regarding national security matters.”
According to law professors Lawrence Lessig and Cass Sunstein, "No one denies that in some sense the
framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a
weak version.” In either its strong or weak form, the theory would limit the power of Congress to divest the
President of control of the executive branch. The "strongly unitary" theory posits stricter limits on Congress
than the "weakly unitary" theory. . . .
Proponents of a strongly unitary theory argue that the President possesses all of the executive power and
can therefore control subordinate officers and agencies of the executive branch. This implies that the power
of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the
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strongly unitary executive theory, independent agencies and counsels are unconstitutional to the extent that
they exercise discretionary executive power not controlled by the President.
[D] – What’s Do the Senate Confirmation Hearings Tell Us About Torture?
Prof. Feldman suggested that if you were to organize from scratch a system of government that simultaneously
could publicly oppose and privately allow torture, you would want to have everyone go to the same schools (e.g.,
Lieberman and Mukasey in the same small section at Yale). You would want elected officials to project the image
of deep disagreement and spirited debate to satisfy an ideologically divided polity, but it wouldn’t hurt if they
remained cordial, either for show or in reality (e.g., old “Iron Pants”). You would want confirmation hearings to
function somewhat dysfunctionally, with the subjects able to dodge the questions and those asking to be making
predetermined rhetorical points rather than conducting a cross-examination.
If this is what we have with the confirmation hearings, does this represent “complexly developed, organized
hypocrisy” in Feldman’s words? If so, is this bad? Is it acceptable if torture keeps us safer?
[E] – Authorization v. Avoidance of Liability
The necessity-as-authorization argument, raised both in the Bybee Memo and the Israeli case, underscores two
possible approaches to necessity as enabling torture or other unlawful activity. An argument can be made that it is
best to keep torture illegal for the purposes of propriety and international reputation, but to torture when necessary
and then absolve the torturers of liability.
Thus, one might oppose torture entirely and structure the law to prohibit and not forgive those who torture of
“necessity.” Alternatively, one may forbid torture but, given the right circumstances, forgive torturers. Finally, one
may authorize torture. The ex ante use of the necessity defense conflates the latter two theories. It might be best, if
one favors torture, to keep one’s mouth shut about any form of ex ante authorization. See § 2.02 [D], supra; cf. §
4.02[F], infra.
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Chapter 4 – War and Exception
§ 4.01 – Summary of Cases & Materials
[A] – The Lieber Code: Excerpts
The Lieber Code is a military order that seeks to have Union combatants comport themselves within certain
standards of military conduct (jus in bello). The Code had little effect on the conduct of the Civil War, but was
influential in subsequent thinking about the law of war.
[B] – Letter from Abraham Lincoln to Sen. Albert G. Hodges (Apr. 4, 1864)
Letter justifying the Emancipation Proclamation, which was likely unconstitutional. Lincoln comes fairly close to
admitting that this is so: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming
indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I
assumed this ground, and now avow it.” Id. at 1.
[C] – Abraham Lincoln, Message to Congress in Special Session (July 4, 1861)
Lincoln had suspended the writ of habeas corpus on his own authority and argued for his interpretation that this
power lay with the executive. He also justified his decision on grounds of necessity, arguing that he cold not be
expected to allow all other laws to go unexecuted simply to preserve the writ. Finally, he argued that the states are
sovereign only through membership in the U.S., and that they therefore had no authority to secede, especially since
it was likely that the majority of U.S. citizens would prefer to remain united.
[D] – Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863)
Lincoln argued in favor of preventive arrests and against resolutions of a public meeting held in Albany. He argued
that he had authority to suspend the writ even in non-rebel territory because the Constitution did not distinguish
between rebel and non-rebel territory. He also asserted that it was preferable to arrest agitators before they
succeeded in persuading desertions rather than executing soldiers who deserted.
[E] – Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)
Description: Merryman lived in Maryland, was snatched up by an armed force claiming to act under orders from
General Keim but without lawful authority. General Keim claims that he was authorized by the President to suspend
the writ of habeas corpus. Justice Taney, riding circuit, ordered the President to take measures to “cause the civil
process of the United States to be respected and enforced.” Id. at 153.
Holding (Taney): The President does not have the power to suspend the writ of habeas corpus; this power lies with
the Congress.
[F] – Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866)
Description: Milligan was arrested pursuant to an order by General Hovey (on charges related to assisting the
Confederacy), tried before a military commission, and sentenced to hang. Subsequently, the Cir. Ct. Ind.
empanelled a grand jury, which declined to indict. Milligan then petitioned the Cir. Ct. Ind. for the writ of habeas
corpus, and the court certified questions regarding his imprisonment to the Supreme Court. The Supreme Court
Holding (Davis): A military commission cannot exercise jurisdiction over a civilian U.S. citizen in a place where
the civil courts are open—the Constitution provides the government “all the powers . . . necessary to preserve its
existence,” so no suspension of constitutionally protected rights (e.g., Fifth Amendment) need occur. Id. at 121,
123.
23
[G] – Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 12–13 (George
Schwab, trans. 1985)
Advances the theory that he who decides upon the state of exception is the sovereign. Thus, by Schmitt’s reasoning,
Lincoln became the sovereign (and forever rendered the President sovereign, at least until someone else declares the
state of exception) when he suspended the writ of habeas corpus and otherwise suspended constitutional rights.
[H] – Korematsu v. United States, 323 U.S. 214 (1944)
Description: Korematsu was a U.S. citizen convicted of violating 18 U.S.C. § 97a, a statute criminalizing violation
of military exclusion orders. The government did not contest Korematsu’s loyalty. The military, under the aegis of
Executive Order 9066, ordered persons of Japanese ancestry to leave certain military areas considered to require
special protection. Subsequent to exclusion, many of the excluded Japanese-Americans were taken to assembly
centers, then held in detention centers. Korematsu was arrested without before entering the assembly or detention
centers. The Supreme Court upheld the conviction.
Holding (Roberts): A person who does not comply with the military exclusion order excluding persons of Japanese
ancestry can be prosecuted criminally, because the order was made out of reasonable military necessity (not racial
prejudice), pursuant to an Executive Order, and its violation was made criminal by Congress; the petitioner was
never in an assembly or detention center, so we cannot pass upon those programs.
Concurrence (Frankfurter): War power is the “power to wage war successfully”; Justice Jackson should refrain
from suggesting that the order was unconstitutional but should be tolerated and not brought before the courts,
because this “suffuse[s] a part of the Constitution with an atmosphere of unconstitutionality.” Id. at 224–25.
Military necessity is what makes the actions constitutional.
Dissent (Roberts): We can’t separate the components of this program, so the detainment is properly before us; this
“is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp,
based . . . solely [on] . . . his ancestry, without evidence or inquiry concerning his loyalty . . . . I need hardly labor
the conclusion that his Constitutional rights have been violated.” Id. at 226.
Dissent (Murphy): This “plea of military necessity in the absence of martial law ought not to be approved. Such
exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism.” Id. at 233
(internal quotation marks omitted). There is no reliable evidence of Japanese-Americans posing any danger and we
can’t defer to the military for sociological considerations.
Dissent (Jackson): The military may undertake actions that violate the constitution—these actions may even be
correct. However, the court cannot place its imprimatur on unconstitutional actions; otherwise the “principle then
lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an
urgent need.” Id. at 246.
[I] – Ex parte Endo, 323 U.S. 283 (1944)
Description: Endo was evacuated from her home in Sacramento and held in the Tule Lake War Relocation Center.
She filed a petition for the writ of habeas corpus in the N.D. Cal. which was denied; appealed to the 9th Cir.,
affirmed, appealed to the Supreme Court. The Supreme Court reversed and ordered Endo freed.
Holding (Douglas): A concededly loyal Japanese-American citizen cannot be detained as part of a program of
detentions based only upon ancestry because although Congress and the executive have broad war powers, laws
abridging civil liberties must be constructed strictly with respect to their purposes; the goal of preventing sabotage
and espionage cannot reasonably permit detaining a loyal citizen.
[J] – Ex Parte Quirin, 317 U.S. 1 (1942)
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Description: A group of Germans, including one who was a U.S. citizen, came ashore in N.Y. and Fla. as part of
Operation Pastorius in order to carry out acts of sabotage. They were tried by a military commission and sentenced
to death; the Supreme Court allowed an appeal in special term from a petition for the writ of habeas corpus by the
district court. The Supreme Court affirmed the judgment of the lower court, and six of the eight were executed just
over a week later (the remaining two received life sentences). The full opinion was released months after the
executions occurred. “The case was not this Court’s finest hour.” Hamdi v. Rumsfeld, 542 U.S. 507, 569 (2004)
(Scalia, J., dissenting).
Holding (Stone): The Constitution allows enemy combatants charged with crimes against the law of war to be tried
by a military commission, irrespective of citizenship; the right to trial by jury applies only to offenses for which the
common law allowed jury trial prior to the framing—this does not include war crimes. Ex Parte Milligan is
inapplicable because Milligan was not an enemy combatant.
[K] – In re Yamashita, 327 U.S. 1 (1946)
Description: After the conclusion of WWII, the U.S. reoccupied the Philippines. The Japanese had killed 100,000
Filipino civilians in the Manila Massacre, and General Tomoyuki Yamashita was blamed—it is disputed as to
whether he had command authority. Prof. Feldman suggests that the U.S. was motivated politically to try and
execute Yamashita hastily in order to placate the Filipinos as they were being reoccupied by the U.S. Yamashita
was tried before a military tribunal, convicted of war crimes and sentenced to death. Yamashita petitioned the
Supreme Court of the Philippines for a writ of habeas corpus, which was denied; he appealed the denial to the U.S.
Supreme Court, which affirmed the denial. He was hanged 2-1/2 weeks after the Court’s decision.
Holding (Stone): Properly constituted military commissions can try enemy combatants for war crimes committed
during wartime even after the cessation of hostilities. (Probably not good law anymore says Feldman.)
Dissent (Murphy): Yamashita should have been afforded Fifth Amendment protections—constitutional protections
should not be ignored except under extreme circumstances; this is dangerous for us in the future.
Dissent (Rutledge): Yamashita is a scapegoat; we don’t hang Generals after we win. “This long-held attachment
[to due process] marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal
force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every
departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or
the conquered. If we need not or cannot be magnanimous, we can keep our own law on the plane from which it has
not descended hitherto and to which the defeated foes’ never rose.” Id. at 42.
[L] – Hirota v. MacArthur, 338 U.S. 197 (1949)
Description: Hirota and two others convicted by a military tribunal in Japan. They petitioned the Supreme Court
for habeas corpus; the Court determined it did not have authority to hear the cases because the military commission
was not a tribunal of the U.S. Hirota and one of the other defendants were hanged; the third spent four years in
prison. The judgment was per curiam; Justice Douglas wrote a bizarre concurring opinion more than six months
later. This outcome of this case was important for Justice Jackson because he had been prosecutor at Nuremberg,
and if the Supreme Court held otherwise, it would undermine the legitimacy of the tribunal.
Concurrence (Douglas): Although on these facts the Supreme Court does not have jurisdiction, it is not the case
that international tribunals are beyond U.S. authority; so long as the U.S. has authority over the custodian, habeas
corpus can be effective.
[M] – Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Description: Yaser Hamdi, a U.S. citizen, was captured by the Afghan Northern Alliance and turned over to U.S.
forces who detained him in Guantanamo Bay, then transferred to a naval brig in Norfolk, Va. Hamdi’s father
petitioned as next friend for a writ of habeas corpus under 28 U.S.C. § 2241 in E.D. Va. The district court ordered a
public defender appointed and given access to Hamdi. The Fourth Circuit reversed this order. The district court
25
then ordered the government to produce evidence, which the government appealed and the Fourth Circuit reversed,
holding that separation of powers precluded the courts from interfering in this area. Certiorari was granted, and the
Supreme Court vacated the Fourth Circuit’s judgment and remanded. Scalia’s dissent is dramatic and famous,
although Feldman suggests that it might be designed to force Congress’ hand to suspend the writ of habeas corpus,
and this might explain why Souter and Ginsburg didn’t join.
Plurality Holding (O’Connor, Rehnquist, Kennedy, and Breyer): The President has the power under the
Authorization for the Use of Military Force (the Court did not reach the question of authority under Art. II) to detain
enemy combatants even if they are U.S. citizens; however, they must be afforded process consistent with the
principles articulated in Matthews v. Eldridge, 424 U.S. 319 (1976).
Concurrence (Souter and Ginsburg): Argues that the Non-Detention Act prevents the President from detaining
combatants except with express Congressional authorization (which the A.U.M.F. does not provide); joins the
plurality for practical reasons: it’s disposition comes closest to the concurring Justices’ preferred resolution.
Dissent (Scalia and Stevens): In the absence of the suspension of the writ of habeas corpus, the U.S. must either
charge Hamdi with a crime or release him.
Dissent (Thomas): The President has Art. II powers to detain enemy combatants; there is no process due.
[N] – Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Description: Salim Ahmed Hamdan, allegedly Osama Bin Laden’s driver, was captured by militia forces and
turned over to U.S. forces in Afghanistan. He was held in Guantanamo, and after a year without specific charge was
accused of the Kafkaesque “conspiracy to commit offenses triable by military commission.” Id. at 566 (internal
punctuation changed). Hamdan petitioned the D.D.C. for a writ of habeas corpus which it granted. The D.C. Cir.
reversed. The Supreme Court granted certiorari, reversed the D.C. Cir. and remanded to the trial court. The
Supreme Court had jurisdiction because the case was pending before Congress amended 28 U.S.C. § 2441, the
federal habeas statute (which would have precluded jurisdiction, but was subsequently overruled, as applied, in
Boumediene).
Holding (Stevens): The military commission was unlawful because 10 U.S.C. § 821 allows military commissions
to try persons who either violate a statute or the law of war; the petitioner is not alleged to have violated any statute
so the law of war applies. Because the Geneva Conventions are part of the law of war, Art. 3—requiring trials to be
held by a “regularly constituted court”—applies. Military commissions are not regularly constituted courts.
Plurality (Stevens, not joined by Kennedy): The law of war also allows the detainee to be present.
Dissent (Thomas): The Geneva Convention doesn’t apply because its phrase “armed conflict not of an
international character . . .” is ambiguous but the President’s interpretation of the phrase is entitled to deference;
even if it applies the claim is not ripe and the commission is regularly constituted and sufficient.
Dissent (Alito): This is a regularly constituted court under U.S. domestic law.
[O] – Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005)
Description: José Padilla, a U.S. citizen, was arrested in Chicago’s O’Hare airport returning from the Middle East,
first as a material witness, then as an enemy combatant. The Fourth Circuit had previously held that the President
had the authority to detain enemy combatants. The government petitioned the Fourth Circuit either to transfer
Padilla from military custody in S.C. to civilian custody in Fla. or to withdraw its earlier opinion. The Fourth
Circuit believed that the government was doing this in order to avoid the Supreme Court, and denied the motion.
The Supreme Court subsequently granted the government’s motion for release from military custody and denied
certiorari pending further proceedings. Hanft v. Padilla, 546 U.S. 1084 (2006).
§ 4.02 – Important Themes
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[A] – The Tests of a Constitution
Professor Feldman describes two ways by which to evaluate a constitution. First, does it provide justice? Second,
does it hold the country together? Prof. Feldman argues that the U.S. Constitution as framed in 1787 failed both
tests. As to the first question, the pre-13th Amendment Constitution permitted slavery. As to the second, Lincoln
believed it necessary to exceed his constitutional authority to hold the country together during the Civil War.
[B] – War = Necessity?
Some view war itself as creating a justification of necessity. In his Korematsu concurrence, Justice Frankfurter cited
Chief Justice Hughes’ line that “the war power of the Government is ‘the power to wage war successfully.’”
Korematsu, 323 U.S. at 224.
A fuller quote from Hughes is that “the framers of the Constitution ‘ did not contrive a spectacle of imposing
impotency’ . . . the Constitution g[ives] to the Government the power to wage war [and] ‘the power to wage war is
the power to wage it successfully.’ ” War Power Ample, Hughes Declares, N.Y. Times, Sept. 6, 1917, at A1,
available at http://www.nytimes.com/ (search “War Power Ample”).
Lincoln’s letters also indicate a view that war implies necessity; see in particular his letter to Erastus Corning.
Finally, war as necessity permeates the Bybee Memo and the Confirmation Hearing materials.
[C] – Sharp Wars
“The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.” Lieber Code, ¶ 29. This
relates to a strain of thought traceable to Carl von Clausewitz, On War (1832). Clausewitz noted that war tends to
escalate. On War, http://en.wikipedia.org/w/index.php?title=On_War (last visited Mar. 25, 2009) [hereinafter
Wikipedia, On War].
This theory laid the groundwork for “total war,” a class of warfare that mobilizes all resources and lessens or
eliminates the distinctions between combatants and civilians. Total war,
http://en.wikipedia.org/w/index.php?title=Total_war (last visited Mar. 25, 2009) [hereinafter Wikepedia, Total war].
Clausewitz’ most famous line is “War is not merely a political act, but also a real political instrument, a continuation
of political commerce, a carrying out of the same by other means.” Lieber and Clausewitz also both discuss a prime
goal of war as the return to peace.
There is a tension between the theory of total war and other values reflected in the Lieber Code; see, e.g. Id. at ¶¶ 21
& 25.
[D] – Habeas as Guardian of the Rule of Law
In his Message to Congress in Special Session, Lincoln asked, “are all the laws, but one, to go unexecuted, and the
government itself go to pieces, lest that one be violated?” Prof. Feldman points out that is disingenuous, for if the
writ of habeas corpus is suspended, there can be no vindication of any other law. Thus, while Lincoln would
suggest that he continued to enforce other laws, without habeas this is a dubious claim.
The history of the writ supports this objection. The writ was instrumental in placing the sovereign within the law
rather than outside the law.
[E] – A Schmittian Analysis of U.S. Exception
According to Schmitt’s theory, Lincoln seized the nations sovereignty and placed it within the executive branch by
declaring exception. It is colorable under this theory that in Korematsu, under rubric of Jackson’s dissent, the
military became the sovereign. This is because Jackson accepted the idea that the military might act
27
unconstitutionally but properly as necessity dictates. This seems to suggest it lies with the military to declare a state
of exception, and by Schmitt’s reasoning, the military became the executive upon exercising this authority (judicial
review notwithstanding).
[F] – Do it But Don’t Bring it into Court
Jackson’s dissent in Korematsu seems to suggest that the military can operate unconstitutionally but correctly if
necessity so requires. However, Jackson couldn’t uphold unconstitutional policies. This implies that Jackson could
approve of the military’s conduct so long as it does not come before the court.
There’s a similar implication in Eisentrager and the cases that follow: the Court appears not to want the question of
military authority / necessity before it. This is also comparable to necessity as authorization contrasted with
necessity as defense—the court cannot approve of torture ex ante but perhaps can excuse it ex post. See §3.02[E],
supra.
A somewhat analogous situation makes Steven’s arguments in Hamdan unlikely and bold: if the Geneva
Convention, Common Article III applies to Al Qaeda, Bush administration officials might be guilty of a war crime
for torturing detainees. This may explain why Mukasey during his confirmation hearing distinguished the
procedural aspects of Hamdan from the substantive ones—he implies that the Supreme Court never reached the
question of whether the Geneva Convention’s protection against torture applies.
[G] – Habeas Jurisprudence: Jurisdiction v. Substance
Rasul and Hamdi were handed down the same week. Rasul was a statutory holding regarding habeas jurisdiction.
Hamdi concerned both the power to detain and the process due to a detainee. Boumediene opened the door for
detainees to challenge their detention even after Congress amended the habeas statute.
[H] – The Geneva Convention
Eisentrager appears to hold that the Geneva Convention is not self-executing. See Hamdan, 548 U.S. at 627.
Stevens makes the argument in Hamdan (mirroring an argument by Souter in his Hamdi concurrence) that if the
government invokes international law as its authority for conducting military commissions, it is bound by
international law in conducting itself. Because the Geneva Convention is part of international law, even if it’s not
self-executing, it is incorporated into the military’s conduct that relies for its authority upon international law (you
can’t “pick and choose”).
This, says Feldman, is “profound” if correct, because it’s yet another mechanism for getting International law into
our law—common law, various statutes (including the Alien Tort Statute), and now the U.C.M.J., which references
international law as a basis for military tribunal jurisdiction. (Note, this could also be argued to be implied by the
word “war” in the Constitution.)
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Chapter 5 – Who Obeys What? The States and International Law
§ 5.01 – Summary of Cases & Materials
[A] – Missouri v. Holland, 252 U.S. 416 (1920)
Summary: The U.S. entered into the Migratory Bird Treaty Act, which affected Missouri’s rights with respect to
the birds within the state. Congress had previously passed an act, ruled unconstitutional under the Tenth
Amendment, that regulated the killing of migratory birds. Missouri appealed the dismissal of its challenge to the
treaty to the Supreme Court which affirmed the dismissal.
Holding (Holmes): With respect to rights reserved to the States, the treaty-making power is not limited to what may
be done by an unaided act of Congress, and the supremacy clause (Art. VI, ¶ 2) gives treaties superiority over
conflicting state law.
[B] – Reid v. Covert, 354 U.S. 1, 16-18 (1957)
Summary: See § 1.01[F], supra. The petitioner argued that the treaty between the U.S. and Great Britain allowed
the U.S. military courts to exercise jurisdiction of the dependents of U.S. servicepersons. The Supreme Court
answered that the U.S. did not have the power to do this.
Plurality Holding (Black): “[N]o agreement with a foreign nation can confer power on the Congress, or on any
other branch of Government, which is free from the restraints of the Constitution.” Id. at 16.
[C] – Convention on Consular Relations (Apr. 24, 1963) – Article 36
Summary: Purport to confer the rights to “a foreign national ‘arrested’ or ‘detained in any other manner’ (1) to
have, on his ‘reques[t],’ the ‘consular post’ ‘inform[ed]’ of that arrest or detention; (2) to have forwarded ‘without
delay’ any ‘communication addressed to the consular post’; and (3) to be ‘inform[ed] . . . without delay’ of those
two ‘rights.’” Sanchez-Llamas v. Oregon, 548 U.S. 331, 373 (2006) (Breyer, J., dissenting). Art. 36 of the V.C.C.R.
would play an important role in several subsequent cases, turning on the issue of interpretation and enforceability of
judgments pursuant to the V.C.C.R.
[D] – State Department Materials on VCCR Compliance: Flow Chart and Booklet
Summary: A document distributed to local law enforcement agencies providing information about how those
agencies can comply with the requirements of the V.C.C.R.
[E] – LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27)
Summary: Arizona arrested two brothers, both German citizens for felony murder and bank robbery, tried them,
and sentenced them to death. Germany was informed much later and after the procedural default rule had barred
future collateral challenges to their death sentences. Their consulate was not informed of their arrest, and Art. 36 of
the V.C.C.R. required their consulate be informed. One of the brothers was executed. The government of Germany
filed an action in the International Court of Justice, which issued a provisional order requiring the U.S. government
to do everything within its power to prevent the second brother’s execution pending disposition of the case before
the I.C.J. The Solicitor General advised the Supreme Court that the I.C.J.’s order had no legal effect, and the
Supreme Court did not intervene. The Arizona Governor, contrary to the advice of the clemency board, allowed the
execution to proceed, and the second brother was executed.
Germany amended its complaint to submit (1) the U.S. violated the LaGrands’ and Germany’s rights under the
V.C.C.R.; (2) the U.S. violated Art. 36, ¶ 2; (3) the U.S. violated its international legal obligations by violating the
I.C.J. order; and (4) the U.S. must be required to assure Germany of future compliance with U.S. obligations under
the V.C.C.R. The I.C.J. upheld Germany’s submissions, and noted that the U.S. must provide a procedure for the
resolution of V.C.C.R. violations.
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[F] – In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128
(Mar. 31).
Description: “In 2003, Mexico filed suit in the I.C.J. on behalf of 54 Mexican nationals on death row in the United
States and obtained provisional remedies against execution of the named inmates prior to the conclusion of the
proceedings. . . . The United States characterized this as an effort to obtain a prohibition on capital punishment for
Mexican nationals. In the suit, Mexico sought annulment of the convictions without a showing of prejudice; a return
to the status quo ante; and application of the exclusionary rule to confessions taken in violation of the order. The
world court held that the United States had violated the convention as to 51 of the original 54 individuals named in
the suit. The I.C.J. interpreted the Vienna Convention requirement that the suspect be notified of his consular rights
without delay, deciding that this phrase did not require notification prior to interrogation in every case, but rather
prompt notification under the circumstances. . . . The I.C.J. also reiterated in Avena that procedurally defaulted
review did not give full effect to the treaty provisions, and held that clemency proceedings did not provide the
requisite review and reconsideration either. The courts remedy was to order United States courts to fully examine
the claims of those named in the judgment, insisting that full weight be given to the treaty violations in any review
process. The Court did not, however, order annulment of the convictions and declined to declare the treaty
notification provision a basic human right.” John M. Castellano, Castellano on Medellin v. Texas, 2008 Emerging
Issues 3095 (citations omitted).
[G] – George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005)
Description: Bush wrote the Attorney General that the U.S. “will discharge its international obligations under . . .
Avena . . . by having State courts give effect to the decision in accordance with general principles of comity . . . .”
[H] – Sanchez-Llamas v. Oregon & Bustillo v. Johnson, 548 U.S. 331 (2006)
Description: After the I.C.J.’s judgments in LaGrand and Avena and after Bush’s letter, Moises Sanchez-Llamas
and Mario Bustillo were separately arrested for attempted murder and other felonies. The prisoners were not among
those listed in Avena. Neither was informed of the right to consular notification. Both appeal their denial of state
writs of habeas corpus. The Supreme Court affirmed the decisions of the state supreme courts.
Holding (Roberts): The V.C.C.R. does not require an exclusionary rule if the notice provisions of Art. 36 are
violated. The interpretation of U.S. treaties lies with the U.S. courts, so the I.C.J.’s interpretation of the V.C.C.R. is
not binding on the U.S.
Dissent (Breyer): The V.C.C.R. creates individual rights; sometimes state procedural default rules must yield,
under the supremacy clause, to treaty obligations including the I.C.J.’s judgment; sometimes an exclusionary rule is
the appropriate remedy to V.C.C.R. violations.
[I] – Medellin v. Texas 120 S. Ct. 1346 (2008)
Description: Jose Ernesto Medellin, a Mexican national, was convicted of participating in the gang rape and
murder of two girls, aged 14 and 16. Medellin was among the prisoners listed in Avena. After dismissal of several
other of his collateral challenges, the Supreme Court granted certiorari to review the dismissal of his state habeas
challenge by the Texas Ct. Crim. App. The Supreme Court affirmed the dismissal and Medellin was executed in
2008.
Holding (Roberts): Although they create an international law obligation, I.C.J. judgments are not self-executing in
the U.S. The I.C.J., which has jurisdiction under the V.C.C.R.’s optional protocol—to which the U.S. was a
signatory—does not have the authority to bind the U.S. to its judgments because the United Nations Charter, Art. 94,
provides that the sole enforcement mechanism for I.C.J. judgments is referral to the U.N. Security Council. The
President’s memo has no effect because he does not have the authority to cause an international obligation to
become self-executing under separation of powers principles.
30
Dissent (Breyer): Self-execution cannot be determined from the text of a treaty because self-execution is a U.S.
concept; instead, treaties must be read from a purposive approach. The President may have the power to require the
enforcement of the judgment because of something like political necessity, although Breyer would rather not reach
this question and doesn’t provide a definitive answer.
§ 5.02 – Important Themes
[A] – Federal and State Power and Treaties
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.” U.S. Const. amend. X. One conception of state’s rights is that the
colonies become sovereign states at the time of the framing. If this is so, the 10th Amendment merely confirmed
what was already true. If instead the Constitution was adopted by “we the people” in the sense of the United States,
the 10th Amendment serves as a necessary protection for the states.
Holmes confronted this in Missouri v. Holland. “[W]hen we are dealing with words that also are a constituent act,
like the Constitution of the United States, we must realize that they have called into life a being the development of
which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize
or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and
blood to prove that they created a nation. The case before us must be considered in the light of our whole experience
and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any
prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible
radiation from the general terms of the Tenth Amendment. We must consider what this country has become in
deciding what that Amendment has reserved.” 252 U.S. at 433–34.
Whatever the relation between the states and federal government before the Civil War, Holmes seems to believe the
federal government has the upper hand afterwards. “It is obvious that there may be matters of the sharpest exigency
for the national well being that an act of Congress could not deal with but that a treaty followed by such an act
could, and it is not lightly to be assumed that, in matters requiring national action, a power which must belong to and
somewhere reside in every civilized government is not to be found.” Id. at 433 (internal quotation marks omitted).
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .”
U.S. Const. art. VI, § 2. Holmes suggests that the text implies that the laws of the United States must be made in
pursuance of the Constitution, whereas treaties needn’t be.
In reply, Black argues in Reid that “the reason treaties were not limited to those made in ‘pursuance’ of the
Constitution was so that agreements made by the United States under the Articles of Confederation, including the
important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly
contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of
Rights – let alone alien to our entire constitutional history and tradition – to construe Article VI as permitting the
United States to exercise power under an international agreement without observing constitutional prohibitions. In
effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The
prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot
be nullified by the Executive or by the Executive and the Senate combined.” 354 U.S. at 16–17.
A counterargument to this point is that the verb tense is future: “shall be made.” This seems a poor explanation for
backwards looking provisions. A better argument might be that this is bad draftsmanship.
[B] – Comity and Timid Courts
Black’s defines comity as “The recognition and respect that a court of one state or jurisdiction shows to another state
or jurisdiction in giving effect to the other's laws and political decisions.” International courts in particular find
themselves in a strange position of position of trying simultaneously to act as courts (i.e., decisively and
authoritatively) but without pushing the limits of the acceptability of their judgments. The ICJ in LaGrand and
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Avena tread somewhat softly in an absolute sense (although pretty forcefully for the ICJ) in ordering only that the
U.S. review its procedures, not that the procedural default rule was unconstitutional. This worry was borne out: the
U.S. withdrew from the Optional Protocol. A similar thread would show up in the ICSID’s resolution of Loewen.
See §6.01[F], infra.
[C] – The Supreme Court as (Exclusive?) Interpreter of Treaties
In Sanchez-Llamas, the Court wrote that “[n]othing in the structure or purpose of the ICJ suggests that its
interpretations were intended to be conclusive on our courts. . . . Any interpretation of law the ICJ renders in the
course of resolving particular disputes is thus not binding precedent even as to the ICJ itself; there is accordingly
little reason to think that such interpretations were intended to be controlling on our courts.” 548 U.S. at 354–55.
Because the I.C.J. is envisioned by the V.C.C.R. to be the body that explicates the treaty’s meaning, the Supreme
Court must assume that the Supreme Court and not the I.C.J. is the final arbiter of the meaning of the treaty itself
(and not just of how the U.S. will apply the treaty). If this is so, while the lower courts may have been entitled to
consider the I.C.J.’s explication of the V.C.C.R. (as persuasive authority) prior to the Supreme Court’s weighing in
on it; perhaps the supremacy clause now precludes this advisory information now that the Supreme Court has
interpreted the V.C.C.R. If, e.g., the procedural default rule is statutory in a state, the state court might have been
able to rely on the authority of the I.C.J.’s judgment before Sanchez-Llamas, now they can’t.
[D] – Treaties, Unsettled?
Breyer, dissenting in Medellin, worries “the majority’s very different approach has seriously negative practical
implications. The United States has entered into at least 70 treaties that contain provisions for ICJ dispute settlement
similar to the Protocol before us. . . . [T]he consequence is to undermine longstanding efforts in those treaties to
create an effective international system for interpreting and applying many, often commercial, self-executing treaty
provisions. I thus doubt that the majority is right when it says, ‘We do not suggest that treaties can never afford
binding domestic effect to international tribunal judgments.’ In respect to the 70 treaties that currently refer disputes
to the ICJ’s binding adjudicatory authority, some multilateral, some bilateral, that is just what the majority has
done.” 128 S. Ct. at 1387–88 (citations removed).
[D] – The Political Implications of Self-Execution (Now and Then)
When Foster and Percheman were decided, few treaties created obligations respecting international tribunals. Thus,
the worst that could be said in terms of democracy deficit problems with treaties is that they bypassed the political
branches of the U.S. Now, with treaties that require adjudication before international tribunals, the President and
Senate can work to put the resolution of U.S. disputes in the hands of foreigners.
[E] – Anthony Kennedy v. Everyone Else
The court more or less flips in its decisions in Boumediene and Medellin. Only Anthony Kennedy votes with the
majority both times (more or less—the Court split 6-3 in Medellin, but Stevens concurrence seems almost more
sympathetic to the dissent).
Kennedy would likely claim that the liberals and conservatives are simply being political and that he is being
consistent by standing always with the Supreme Court as the arbiter of what the law is. The other justices might say
that Anthony Kennedy is a hack lawyer who is on the Court only because he was personal friends with Reagan, but
has gone all mushy and he is just splitting the difference politically.
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Chapter 6 – The Constitution in International Markets / Rights and International Norms
§ 6.01 – Summary of Cases & Materials
[A] – Charles A. Beard, An Economic Interpretation of the Constitution Of The United States (1913)
Description: Argues that by examining the correspondence of the framers and the Federalist, it’s clear that the
Constitution is an economic document designed to satisfy economic interests. “It was an economic document drawn
with superb skill by men whose property interests were immediately at stake; and as such it appealed directly and
unerringly to identical interests in the country at large.” Id. at 188.
The framers were wealthy as bondholders and sought to reign in the power and revolutionary spirit of farmers and
planters; Beard argued in later works that farmers and debtors would win out over the capitalists by 1800. See
Wikipedia, An Economic Interpretation of the Constitution of the United States,
http://en.wikipedia.org/wiki/An_Economic_Interpretation_of_the_Constitution_of_the_United_States (as of Apr.
30, 2009, 11:55 GMT).
The book was the most important work on the Constitution for several decades following its publication, until it was
discredited in the 1950s. While its conclusions are not entirely accurate, the works discrediting Beard were based on
economic models with insufficiently sophisticated regression analysis. Nevertheless, it has largely dropped out of
view in modern curricula.
[B] – Robert A. McGuire, To Form A More Perfect Union: A New Economic Interpretation of the
United States Constitution (2003)
McGuire argues that although Beard’s interpretation fell out of favor and is not entirely correct with its focus on
“personalty” and “realty,” it is correct that the framers were motivated by self-interest. He undertakes an economic
study of demographic factors of the framers and state ratifying conventions (which offered more robust than the data
on the framers: 1400 or 1500 people compared to 51) comparing this data to how each voted (public choice theory).
“The findings indicate voting patterns that can be said to generally support an economic interpretation of the
Constitution because personal and constituent economic interests affected voting on particular issues primarily when
those interests were more likely to be advanced by the outcome. . . . [T]he statistical findings . . . indicate that a
delegate’s occupation, assets, and wealth did significantly influence his vote during the drafting and ratification of
the Constitution.” Id. at 91, 209.
[C] – McCulloch v. Maryland, 17 U.S. 316 (1819), 401-25
Description: Maryland attempted to tax the Second Bank of the United States. Maryland sued James McCulloch, a
cashier at the bank, for issuing currency not stamped in the manner required by Md. law. The Md. appellate courts
affirmed the decision, and McCulloch appealed to the Supreme Court. The Supreme Court struck down the Md.
law.
Holding (Marshall): U.S. states are bound by acts of Congress that are neither specifically enumerated nor
forbidden, provided that Congress’s end is legitimate within the scope of the Constitution and its means are
appropriate and plainly adopted to that end.
[D] – Legal Tender Cases: Hepburn v. Griswold, 75 U.S. 603 (1870); Knox v. Lee & Parker v. Davis,
79 U.S. 457 (1871)
Description: Hepburn held that Congress could not make notes legal tender to satisfy contracts entered into before
the legislation (Legal Tender Act of 1862) because the notes were not of the same value and thus violated the due
process clause of the Fifth Amendment. The dissenters noted that military necessity in paying for the Civil War
gave Congress this power. They were “very frank” said Feldman, because they recognized they weren’t clearly
correct on constitutional grounds, but noted that there was clear necessity.
33
The Legal Tender Cases overruled Hepburn, holding that the obligation a contract creates is simply to pay the debt,
although expectations might include gold coins. Therefore Legal Tender Act applied even to preexisting contracts,
because it did not impair contracts, and in any event the 5th Amendment does not cognize this sort of regulation as a
taking.
Bradley’s dissent is particularly interesting as it explains necessity in a Hobbesian way. See § 6.02[B], infra.
[E] – Gold Clause Cases: Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240; Nortz v. United
States, 294 U.S. 317; Perry v. United States, 294 U.S. 330 (all 1935).
Description: Immediately after President Roosevelt took office, Congress passed the Emergency Banking Act and
E.O. 6102, requiring all gold be remitted to the government in exchange for paper money. Later followed a “joint
resolution canceling all gold clauses in public and private contracts, stating such clauses interfered with the
Congress's power to regulate U.S. currency.” Wikipedia, Gold Clause Cases,
http://en.wikipedia.org/wiki/Gold_Clause_Cases (as of Apr. 30, 2009, 12:28 GMT).
Norman held that necessity and the power of Congress to create rules affecting commerce made the gold clause
limitations constitutional. Responding to the argument that vested gold clauses in contracts were a property right
that Congress had destroyed without compensation, the Court wrote that contracts cannot “fetter the constitutional
authority of the Congress” and that the ubiquity of gold clauses thwarts a legitimate congressional objective. Id. at
307, 312.
The dissenters argued that the government was bound by its limited and enumerated powers, and that the majority’s
holding was part of a nefarious plan that would allow the government simply to print money. The government was
avoiding its obligations in violation of the Fifth Amendment, including its obligations to bondholders abroad.
Nortz involved a holder of a Treasury gold certificate, and argued that he was entitled to the weight of gold the
certificate promised, which was worth more than the face value of the certificate due to higher gold prices. Perry
involved a similar situation with a bond promising payment in gold coin. The Emergency Banking Act prevented
both parties from private ownership of the gold the instruments they held promised; the Court in both cases held that
there was no Fifth Amendment violation because neither claimant was entitled to the gold and therefore had no
claim that he had been deprived of its value.
[F] – Loewen Group Inc. v. United States (International Ctr. for Resolution of Disputes 2003)
Description: A dispute between a funeral home company in Canada (Loewen) and one in Miss. (O’Keefe) led to a
jury trial in Miss. in which the jury awarded O’Keefe $500 million. The award was outrageous and followed from a
trial rife with appeals to race, class, and national identity. In order to appeal Loewen would have to post bond of
125% of the judgment. After several interim measures, the appeals court refused to provide any relief from this
requirement or further stay execution of the judgment pending an appeal. Loewen was forced to settle with
O’Keefe.
Loewen brought a claim before the ICSID, alleging discrimination in violation of provision of NAFTA.
Subsequently, Lowewen moved most of its operations to the U.S., leaving behind a shell company whose only asset
was this claim. The court noted that the Miss. court’s behavior was beyond the pale, but ruled that the while
Loewen’s failure to exhaust his appeals was the ostensible reason for dismissal. The fact that the company is in the
U.S. was also an important reason for dismissal. Lurking behind the scenes may be the ICSID’s fear of putting its
foot down and leading the U.S. to back out of NAFTA. See Id. at 70, ¶ 242.
The court discussed that while “[r]ights of action under private law arise from personal obligations . . . NAFTA
claims have quite a different character, stemming from a corner of public international law in which, by treaty, the
power of States under the law to take international measures for the correction of wrongs done to its nationals has
been replaced by an ad hoc definition of certain kinds of wrong, coupled with specialist means of compensation.”
Id. at 67, ¶ 233.
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[G] – Roper v. Simmons, 543 U.S. 551 (2005)
Description: A 17 year old sentenced to death challenged his conviction under the Eighth Amendment, and after
the Mo. Supreme Court struck down his conviction, certiorari was granted. In affirming the Mo. Supreme Court,
Justice Kennedy cited a variety of international sources.
Holding (Kennedy): The Eighth Amendment forbids imposing the death penalty juvenile offenders under 18.
[H] – Lawrence v. Texas, 539 U.S. 558 (2003)
Description: Two men were convicted of violating Texas’s anti-sodomy law. On appeal to the Supreme Court,
Justice Kennedy cited to international law in overruling Bowers v. Hardwick and ruled that the Texas law was
unconstitutional.
Holding (Kennedy): Anti-sodomy laws violate the due process clause.
[I] – Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen
Breyer, Jan. 13, 2005
Breyer likes talking about international law in his opinions. Scalia does not like this (especially when Kennedy does
it).
[J] – Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective
in Constitutional Adjudication, 40 Idaho L. Rev. 1 (2003)
Ginsburg likes looking at international law in her opinions.
§ 6.02 – Important Themes
[A] – Mad Libs: _____ is the most important _____ in _____.
“International law is part of our law” is the most important line in the U.S. Reports about international law.
Dred Scott is the most profoundly anti-colonial opinion in the U.S. Reports.
McCulloch v. Maryland is the most important constitutional decision in Supreme Court history.
Missouri v. Holland is the most important treaty power case in Supreme Court history.
The Bank of the United States was the most important political issue in the first 30 years of the U.S.
[B] – What’s This Necessity Thing, Anyway?
“But the creditor interest will lose some of its gold! Is gold the one thing needful? Is it worse for the creditor to lose
a little by depreciation than everything by the bankruptcy of his debtor? Nay, is it worse than to lose everything by
the subversion of the government? What is it that protects him in the accumulation and possession of his wealth? Is
it not the government and its laws? And can he not consent to trust that government for a brief period until it shall
have vindicated its right to exist? All property and all rights, even those of liberty and life, are held subject to the
fundamental condition of being liable to be impaired by providential calamities and national vicissitudes.” The
Legal Tender Cases, 79 U.S. at 564 (Bradley, J., dissenting).
On this view, but for the government, one would have nothing—no property, no rights, no life. As Feldman put it
“you can talk about your rights as much as you want, it won’t do any good and then they’ll eat you.” If this is true,
the government can legitimately justify literally anything so long as it’s born of true necessity.
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[C] – Creditors
One can argue for economic necessity along the following lines: if the government must borrow money to function,
one of its most (perhaps its very most) critical role is to protect creditors. It must do this two ways: first, by solving
a collective action problem; second, by using its nonpolitical branches to prevent the majority of debtors from
abrogating their obligations (tyranny of debtors).
The bailout is the most recent demonstration of the thoroughness with which economic necessity is accepted. While
it might be the case that the bailout is unconstitutional, the Supreme Court would never rule this way and would in
fact likely not even grant certiorari on a case challenging the bailout.
The Supreme Court functioned primarily as a protector of property interests until the Legal Tender Cases. This
would prove to be but a blip, however, as the Lochner Era would lead to renewed property protection. However, the
New Deal Court would shift its focus to protecting liberty. One explanation is that the creditors became more
sophisticated and could rely on capturing political branches and structuring the law so as never to reach the courts or
having positive law on their side rather than relying on the courts to protect them.
[D] – Arguments about Citing Foreign Sources = Proxy War
It is difficult to explain what international law means to those who haven’t made a close study of it. Thus, it seems
that the debate over the proper place of international law in the U.S. is being fought out as the debate between
Justices Kennedy and Scalia, for example. This is a much-altered debate, but contains many of the important
threads of the fuller controversy.
36