International Law as Part of Our Law: A Constitutional Perspective

Abstract

"International law is part of our law," the U.S. Supreme Court declared some one hundred years ago in The Paquete Habana. Conventional wisdom in modem scholarship assumed, at least until four years ago, that this meant international law in the U.S. legal system had a status akin to federal common law. In a 1997 Harvard Law Review article, Professors Curtis Bradley and Jack Goldsmith ignited an academic firestorm by challenging this assumption. In particular, Bradley and Goldsmith argued primarily that international law did not (or should not) operate like federal common law in at least two key respects: it should not preempt inconsistent state law; and it should not form a basis for federal jurisdiction.

Although much debate erupted over these claims, little of it has cast itself primarily as constitutional interpretation, and none of it, so far as I am aware, has taken the Constitution's text as its central authority. This article offers a constitutional perspective on the continuing controversy, specifically in the context of international human rights litigation, and specifically addressed to the Constitution's text. I argue that the Bradley/Goldsmith position, rather than being a single claim about the status of international law, is properly viewed as a series of claims about particular parts of the Constitution, some of which are more persuasive than others.

My observations proceed in three parts. Part I provides a summary of the international-law-as-federal-law debate. It also briefly addresses why this academic debate matters to practitioners of international human rights law: in sum, because in much international human rights litigation in federal court, federal jurisdiction is based upon international law, which Bradley and Goldsmith would not allow. Part II offers a constitutional perspective on Bradley and Goldsmith's central contentions, namely that international law is not federal law for purposes of supremacy or jurisdiction. First, I point out that these are two very different claims based on differently worded provisions of the Constitution: the supremacy claim depends on Article VI, while the jurisdictional claims arise from Article Ill. As a result, the claims should be analyzed separately. In undertaking this separate analysis, I argue that the text, history, and structure of the Constitution strongly support the Bradley/Goldsmith view with respect to supremacy, but are much more ambiguous with respect to jurisdiction. I conclude, therefore, that it may be possible to accept the more persuasive parts of the Bradley/Goldsmith position without fatally undermining international human rights litigation. Finally, in Part III, I outline some continuing constitutional objections to using international law to convey federal jurisdiction in international human rights litigation.