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12/05/2017

William Dodge: Customary International Law, Change, and the Constitution
Michael Ramsey

William S. Dodge (University of California, Davis - School of Law) has posted Customary International Law, Change, and the Constitution (106 Georgetown Law Journal, forthcoming) on SSRN.  Here is the abstract: 

Customary international law has changed in many ways since ratification of the U.S. Constitution. This Article considers the implications of those changes for customary international law’s role under the Constitution. In particular, it challenges the claims made in a new book, The Law of Nations and the United States Constitution, that U.S. courts must respect the “traditional rights” of foreign nations under the law of nations and may not apply the modern customary international law of human rights. The Article argues that the book is not consistent in its approach to changes in customary international law, embracing some while rejecting others. The Article also shows that a full account of how customary international law has changed undercuts each of the book’s two constitutional arguments.

This is another article in the outstanding Georgetown Law Journal symposium on "The Law of Nations and the United States Constitution" (see my post from yesterday on my contribution to the symposium).  I don't dispute the principal conclusion of Professor Dodge's article, that the U.S. courts may apply the modern law of nations (in at least some instances) consistent with the Constitution's original meaning.  But Professor Dodge and I have a deeper dispute over original meaning in this area, namely on the question whether customary international law can be the basis for federal court jurisdiction in human rights (and other) cases.  I will further explain the relevance of that dispute in a future post.