A Conversation with Gary Born on the Future of International Law in American Courts

International Law in American Courts examines the status and applicability of rules of international law in the United States—specifically, in federal and state courts in the United States. The work explores the status of international law, both public and private, under the Constitution, discussing how the Constitution’s drafters regarded the “law of nations” at the end of the 18th century and how those views were implemented in the Constitution. The work also explores how the Framers’ treatment of international law continued to be adopted over the next 200 years or so of the Nation’s history—in all instances being regarded as a matter of national or federal law, rather than as a matter of state law. The work also explores how the Constitution’s drafters and subsequent generations regarded the direct applicability of international law by American courts—in all instances regarding international law as being presumptively applicable in U.S. courts, even in the absence of congressional implementation.

The question of the status of international law in the United States—whether international law is federal law, state law, or something else entirely is especially important today. Recent events in the United States and elsewhere underscore the vital importance of the rule of law, and particularly the rule of international law. International Law in American Courts is addressed to the fundamental questions surrounding the rule of international law in the United States and, by analogy, elsewhere, what is the status of the rules of international law and when are those rules applicable in national courts?

International Law in American Courts is also particularly timely because recent academic commentary and decisions by the U.S. Supreme Court have, for the first time in the Nation’s history, departed from the treatment of international law in the Constitution. In decisions involving the application of U.S. treaties the Supreme Court has apparently reversed two centuries of precedent, treating U.S. treaties and other international agreements as presumptively applicable (or “self-executing”) in American courts, instead limiting the circumstances in which treaties will be self-executing in significant respects. Similarly, opinions by several Supreme Court Justices have, again for the first times in the Nation’s history, adopted “revisionist” views of rules of customary international law—apparently adopting the surprising view that these rules are matters of state law, seldom, if ever, directly applicable in American courts. Addressing the errors in these views of international law is therefore both timely and important.

Any serious constitutional interpretation must consider not just the text, but how the drafters of the Constitution understood that text. It was therefore important for the work to carefully examine the period before the Constitution’s ratification, the drafting and ratification debates, and the first decades after the Constitution’s adoption. That historical record is complex and detailed (and often ignored). Identifying the relevant sources and understanding what they meant in a very different historical era was a central challenge of the research on this project.

For most of U.S. history, treaties were treated as presumptively self executing and equivalent to federal statutes. That understanding shifted in recent U.S. Supreme Court decisions, particularly Medellín v. Texas and the Restatement (Fourth) of Foreign Relations Law of the United States, which uncritically accepts the Court’s analysis. International Law in American Courts argues that this shift is wrong. It argues that the shift rests on an incomplete reading of the Constitution’s history, including the treatment of treaties under the Articles of Confederation, during the Constitution’s drafting and ratification and in the immediate post-ratification period. These sources show that the Constitution’s Framers intended treaties to operate as law in U.S. courts once ratified unless clearly intended otherwise, and that presumption should be restored.

For most of the Nation’s history, rules of customary international law were regarded as matters of federal law. That was true even prior to ratification of the Constitution, when the law of nations was regarded, unsurprisingly, as national law, not just a matter of the laws of individual colonies or states. This understanding of international law as national law, overriding the laws of individual states, was shared across the political spectrum of the day, notwithstanding enormous differences to other questions of national authority. Those views were specifically implemented in the Constitution, which was drafted to ensure that rules of customary international law (the law of nations) would continue to have the status of federal law, with preemptive effects on contrary state law rules. And, in the decades immediately following ratification, exactly that view of the status of the law of nations continued to be shared across the political spectrum.

In contrast, recent opinions of Justices Scalia and Gorsuch have adopted the reasoning of revisionist academics, suggesting that rules of customary international law are really matters of state law—subject to different interpretations in different states. International Law in American Courts argues that these views are historically indefensible, as well as being inimical to vitally important contemporary national interests.

In understanding the Constitution’s treatment of international law, it is essential to have regard to how the Framers and their generation understood what they termed “the law of nations”—their term for what we today regard as public and private international law. The Framers, and subsequent generations through most of the 19th century, regarded rules of both public and private international law as national law—federal law for purposes of the Constitution. That treatment extended to rules of judicial jurisdiction over foreign parties, forum non conveniens and lis pendens, international forum selection agreements, international choice of law rules, legislation jurisdiction in international cases, recognition of foreign judgments and international comity. I take the view that the Framers’ treatment of rules of private international law not only must (as a matter of Constitutional interpretation) but also should (as a matter of sensible federal policy), continue to be treated as matters of federal law.

My hope is that the work invites serious reconsideration by judges and other legal professionals as to how international law fits within our constitutional structure. Or at the very least reframe the debate on its proper constitutional terms. Ideally that would lead to the emergence of a coherent approach that’s firmly grounded in the original intent of the Framers.