International Law in American Courts

In a new book, International Law in American Courts, slated for publication in Summer 2025, I address the status of international law in American courts under the Constitution and the power of those courts directly to apply rules of international law.  Readers can find the full manuscript on SSRN here. In this post, I summarize the arguments and briefly describe historical evidence from the pre-ratification period, the Constitutional Convention, and the immediate post-ratification period.

The Basic Argument

International Law in American Courts argues that the current treatment of international law is contrary to the Constitution’s text, history, and objectives; inconsistent with treatment of the subject by American courts for the 200 years following ratification; and inimical to the United States’ contemporary national interests.  The book also argues that there are readily available means for remedying these defects, by returning to the treatment of international law that was intended by the Framers, either through straightforward textual interpretation of the Constitution or through formulation of equally straightforward contemporary rules of federal common law.

More specifically, the book contends that, contrary to much recent authority, all rules of international law – known to the Framers as the “law of nations” – are part of the “Laws of the United States.”  This body of federal law encompasses all international law rules. It includes rules of public international law, which define the rights and duties of nations. It also includes rules of private international law, which define the extent of U.S. judicial and legislative jurisdiction over foreign parties and conduct and the effects of foreign laws, judgments, and judicial proceedings in U.S. courts.

The book also argues that, notwithstanding their status as federal law, some rules of international law may be applied by U.S. courts only if the federal political branches have authorized direct judicial application, making them “self-executing.”  Although all rules of international law which are binding on the United States are presumptively applicable in American courts, as part of the law of the land, some such rules are addressed to the political branches, not the judiciary, for application.  Under this analysis, most treaties and most rules of private international law would be directly applicable (or self-executing) in U.S. courts, regardless of whether they had been implemented by congressional statute, while some, but not all, customary rules of public international law would have self-executing status.

The book’s analysis accords rules of international law the status that was intended by the Framers – as part of the Laws of the United States under Articles III and VI of the Constitution –which prevailed for much of the Nation’s history.  That analysis also seeks to ensure achievement of the Framers’ objectives of advancing the interests of the United States and its citizens, rather than those of individual states, in matters of foreign relations and international law.  In so doing, the analysis proposed in International Law in American Courts also advances the United States’ contemporary interests – in contrast to the current treatment of international law by American courts.

Among other things, the book focuses historically on the drafting and ratification of the Constitution, including the immediate pre-ratification period under the Articles of Confederation.  It also devotes attention to textual and structural arguments about the Constitution and to contemporary developments, including application of federal common law doctrine to the subject.  For purposes of this post, however, I will only summarize the treatment of historical matters.

Before Ratification

The book devotes attention to the treatment of international law (then, “the law of nations” and U.S. treaties) during the pre-ratification period.  Among other things, it discusses the Nation’s first federal court – the under-appreciated Federal Court of Appeals in Cases of Capture – established under the Articles with jurisdiction to review and set aside state court applications of the law of nations and U.S. treaties. All of the leading Framers of the Constitution played substantial roles in the Court’s affairs, including Wilson, Madison, Hamilton, Pinckney, Randolph, Chase, Ellsworth, Dickinson, Adams, Sherman, Sergeant, and Rutledge.

The book also discusses the most significant pre-ratification decision of any American court – the New York Mayor’s Court’s decision in Rutgers v. Waddington, where a stellar cast of future Framers, including Hamilton, Duane, and others appeared. The decision treated the law of nations as preemptive national law, capable of overriding state statutory provisions.

Also in the pre-ratification era, the book discusses John Jay’s 1786 Report to Congress (as the then-Minister of Foreign Affairs of the Confederation) on alleged U.S. violations of the 1783 Treaty of Peace with Britain by Virginia and a few other states, and its conclusion that the law of nations and U.S. treaties had the status of preemptive national law.  That Report was unanimously approved by the Continental Congress, which issued a circular letter to the states characterizing international law (and U.S. treaties) in the same terms, a few months before the Constitutional Convention.

The Constitutional Convention

The book moves on to the Convention, where the delegates’ main purpose was to augment the role of national authorities in the conduct of U.S. foreign affairs and the regulation of foreign commerce.  Unsurprisingly, given their experiences in the preceding months and years, the Framers did not intend to downgrade the national status of international law but instead to enhance that status and ensure that it could be more effectively implemented.  Their repeated statements at the Convention and in the ratification debates, which are discussed in the book, made these points explicitly on multiple occasions – with essentially no dissent, from any part of the political spectrum of the era.

As a consequence, as the book describes, the Framers included both U.S. treaties and the law of nations in Article VI’s Supremacy Clause and Article III’s grant of arising under jurisdiction.  They did so, as they repeatedly said during this period, by including the law of nations as part of the “Laws of the United States” in both provisions – giving it the status of preemptive federal law, presumptively directly applicable as the law of the land in U.S. courts and subject to the authoritative interpretation of the federal courts.

After Ratification

The Book then discusses the immediate post-ratification period, when statesmen from across the political spectrum repeatedly said that the law of nations was part of the laws of the United States, subject to the federal courts’ jurisdiction and possessing preemptive effects on state law.  That included provisions of the First Judiciary Act; the Nation’s first, and highly-publicized, model jury charge (in 1790) by Chief Justice Jay; the Nation’s first Attorney General opinions (between 1790 and 1793) by Attorney General Randolph; Washington’s 1793 Neutrality Proclamation; multiple jury charges regarding neutrality violations by Jay, Wilson, Ellsworth, Iredell, and others; Jefferson’s diplomatic correspondence with foreign and domestic figures; and the early Attorney General opinions of Lee, Bradford, and Wirt.  That conclusion is confirmed by judicial decisions during the Republic’s first several decades, such as Henfield’s Case, Chisholm v. Georgia, United States v. Ravara, Ware v. Hylton, and Schooner Exchange, which uniformly adopted the same view of the law of nations, referring to it as “national” law, the law of this “Country” or “our Nation,” or part of “the Laws of the United States.”

In contrast, and notwithstanding intense partisan controversy at the time, there were virtually no recorded contrary statements denying that the law of nations had the status of national law.  Rather, during the first decades of the Nation’s existence, there was a consensus across the political spectrum, including from leading figures like Jefferson, Randolph, Peter Duponceau, St. George Tucker, and others, that the law of nations was, like U.S. treaties, part of the Laws of the United States for purposes of both Article III and Article VI.

Conclusion

The book continues, unlike this blog post, to address subsequent developments in the immediate post-ratification period and thereafter for the next 240 years or so.  Space does not permit recounting that history here, nor discussing the other aspects of the book addressing the United States’ contemporary interests and the treatment of international law as federal common law.  Those can be the subject of another post, but for now I invite readers to download the manuscript     and please send any comments, criticisms, or suggestions to gary.born@wilmerhale.com. The subject is a timely and important one, and the more complete and accurate its treatment, the better.