« Jonathan Mitchell: Textualism and the Fourteenth Amendment
Michael Ramsey
| Main | Liberal Originalism and the Impeachment Clause
Michael Ramsey »

05/30/2017

The Term "Law of Nations" in the Define and Punish Clause
Andrew Hyman

Mike Ramsey recently asked: "Does Congress still have the authority to regulate immigration under the define and punish power even though the act being punished is no longer a violation of international law?"  Yes, it does.

According to Blackstone:

[T]he law of nations (wherever any question arises which is properly the object of its jurisdiction) is here [in England] adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world.

So, the "law of nations" in the Constitution ought to be treated similarly to the words "common law" which appear twice in the Constitution, both times in the Seventh Amendment, in the sense that they have a permanent meaning referring to the old English law background upon which the Constitution was written.  Under the Seventh Amendment, reference must be had to exact or analogous material in "the English common law when the amendment was adopted" (Baltimore and Carolina Line v. Redman, 295 U.S. 654 (1935)).  The power to enforce new treaties is available to Congress to some degree without recourse to the Define and Punish Clause, and the framers distinguished treaties from the law of nations; according to a law review article last year by William Moon, "the First Congress conceptualized 'treaties' (i.e., conventional law of nations) as separate from and not included in 'the law of nations'."

Some might argue that we should forget about the English law background, and let modern treatises and modern judicial decisions expand "the law of nations" to which the Constitution refers, and thus expand the power of Congress.  But the idea that such an expansion of power could be accomplished without any legislation and without any constitutional amendment is foreign to the structure of the Constitution, which limits legislative power to Congress itself, and provides a finite list of legitimate ways to amend the powers delegated to Congress.  In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court seems to have read the Define and Punish Clause to include  "the present-day law of nations" which is a mistake, as is the statement by Professor Ilya Somin that the Define and Punish Clause "does not give Congress the power to forbid anything that might have been banned by the law of nations at some time in the past, but merely that which actually is illegal under it today."  The "law of nations," as that term is used in the Constitution, is not part of the "supreme law of the land" like federal statutes per the Supremacy Clause; rather, the law of nations was a known but somewhat vague quantity in 1789, and it would have made little sense to let Congress remove only the vagueness of the law of nations while allowing democratically unaccountable actors the much greater power to contract, enlarge, or completely rewrite it.

MICHAEL RAMSEY ADDS:  Rob Natelson makes a similar point by email:

I doubt that congressional power under the Constitution shifts every time there is a change in international law standards, any more than than the composition of a "jury" in the Seventh Amendment shifts because some states decide to create civil juries of six with non-unanimous decision making.

Or, here's perhaps an even more modern and chilling example:
Deep environmentalists convince the "international community" to adopt a new international norm to save the planet: Every nation will be required to adopt and enforce on its people a zero population growth plan; a nation's population growth in excess of zero (with adjustments perhaps) will be considered aggression against other nations.
 
Substantive due process issues aside, would that, under the Define and Punish Clause, give Congress the power to legislate a "one child" policy for Americans?
Obviously, some constitutional powers have to be construed as connected to outside developments---shipment by railroads, for example, is "commerce" although railroads didn't exist (outside of mines) in 1789. But I think there is a problem in altering the scope of enumerated powers based on policy decisions by outside governments---as in the state jury and population growth examples---who could thereby jigger our constitutional system in otherwise extra-constitutional ways.