Framing the framers: the Left enlists some 'dead white males' in the cause of today's international law.

FOR years, academics and left-wing activists have been searching for a means of enforcing international law, as they construe it, against the United States. So far, they have not been particularly successful. This was true even throughout Bill Clinton's presidency, when there was a good deal of international-law rhetoric but precious little practical application. Mr. Clinton was, after all, the first U.S. president to reject the International Criminal Court; he also took the United States to war against Serbia without obtaining United Nations approval.

George W. Bush has made clear by word and deed that he will never seek an international "permission slip" to defend America's interests. His successes in Afghanistan, Iraq, and especially the 2004 presidential election have left many "progressives" muttering in a quiet rage. In response, some have taken to arguing that the United States in general, and the president in particular, is bound by international law because it is already part and parcel of the Constitution--law that the president must "faithfully execute" as part of his office. Doubtless hoping to steal a march on their conservative opponents, a few hardy souls have actually turned to the Constitution's framers for support.

For those dedicated to the "living constitution," this foray into original-meaning jurisprudence is surely Indian Country. Nevertheless, they managed to bring home some treasures--or so it must appear. In fact, quotations abound in which the framers extol the virtues of "the law of nations" and assume that the United States is bound by that law. There are many early decisions in which the courts, including the Supreme Court, consider and apply international norms. The Constitution itself makes treaties "the supreme Law of the Land" and gives Congress the power to define offenses against the law of nations.

If is, of course, understandable that the Left has been so drawn to this argument, which is increasingly evident in both academic and popular literature. Its most extreme proponents must think they've found the Philosopher's Stone. By virtue of "international law," the Bush administration's most hated wartime policies are transformed from "wrongheaded" decisions into offenses against the Constitution. Better still, the American electorate's stubborn refusal to accept the Left's policy preferences on almost every issue becomes irrelevant: The Constitution allegedly already requires that the death penalty be abolished, abortion-on-demand be preserved, Social Security be expanded, and health care be made universal--all because of widely accepted international conventions or custom.

But the Constitution's framers did not create a free-ranging commission by which elite, "progressive" international opinion could be transformed into American domestic law, enforceable in the courts and binding on the president and Congress. They did, of course, respect and honor the law of nations, from self-interest if nothing else. The framers were especially keen to have this body of practices and norms applied to the United States as a reaffirmation of its place as an independent state. It was, however, the "law of nations" and not "international law" to which they referred.

THE UNCHANGING INTERNATIONAL LAW

Not surprisingly, the "law of nations," as understood and accepted by the Constitution's framers, bore little resemblance to the "international law" of today, and still less to the "international humanitarian law" that the Bush administration has supposedly violated. It was highly deferential to the needs of sovereign states, and included a narrow set of rules with a well-defined and limited application. As the Supreme Court recently explained in Sosa v. Alvarez-Machain (2004), these included "the general norms governing the behavior of national states with each other ... a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor ... [and] a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships." In this last category were rules permitting states to prescribe criminal sanctions for violating safe conduct, assailing ambassadors, and piracy.

What the law of nations did not include was the host of "internationally recognized" norms--applicable to how states govern their own affairs and the rights of individuals vis-a-vis their governments--that make up much of modern international law. Had this been the case, the American republic would have looked very different from the nation actually formed by the Constitution. In fact, looking at the prevailing global consensus at the time, it is doubtful that the United States would have been a republic at all. From the perspective of the "international community," then dominated by absolutist monarchies, the American Constitution's principles were genuinely revolutionary. There is therefore little reason to believe that the framers would have left those principles open to reformation and repeal based on international approval.

The law of nations was a safe construct precisely because it could not change--at least, not much. This body of law was universally applicable not because it represented the current global consensus, but because it was rooted in the immutable law of nature, a manifestation of God's will. As explained by the English jurist Sir William Blackstone:

   This law of nature, being co-eval with mankind and dictated by
   God himself, is of course superior in obligation to any other. It
   is binding over all the globe, in all countries, and at all times:
   no human laws are of any validity, if contrary to this; and such of
   them as are valid derive all their force, and all their authority,
   mediately or immediately, from this original.

The divine origin of the law of nations is, of course, a point rarely noted by those claiming some special constitutional status for modern international law. But it is this concept to which the framers referred.

Even so, they were remarkably cautious when it came to the Constitution's actual requirements. In discerning those requirements, the first step is to examine the text. It does not, of course, make reference to international law. In Article I, section 8, clause 10, Congress is given the power to "define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." Article VI, clause 2, makes the Constitution and laws of the United States, "and all Treaties made, or which shall be made, under the Authority of the United States ... the supreme Law of the Land." These are the Constitution's only references to an international law. There is little doubt about the purpose or meaning of either provision.

Madison's notes of the Federal Convention suggest that the power to define and punish piracies and offenses against the law of nations was discussed twice, although not at great length. The provision was adopted to ensure that the national government, rather than individual states, would have the authority to legislate in this area--to avoid inconsistent or conflicting state rules. Significantly, Madison also noted that the clause was necessary because "no foreign law should be a standard farther than is expressly adopted."

Perhaps this thought piqued the interest of Pennsylvania's Judge James Wilson, one of early America's most important international-law advocates. When the provision was discussed again, near the convention's end, Wilson objected to the word "define," arguing that "to pretend to define the law of nations which depended on the authority of all the civilized nations of the world, would have a look of arrogance, that would make us look ridiculous." Gouverneur Morris responded that "the word define is proper when applied to offenses in this case; the law of nations being often too vague and deficient to be a rule." And so the debate between realism and idealism, unilateralism and multilateralism, began-or continued. Significantly, the word "define" stayed in the text.

TREATY TALK

The story was similar on the question of treaties. Indeed, the framers articulated the purpose of the "Supremacy Clause" in the same very sentence: "[A]nd the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." This, of course, had been one of the principal faults of the original Articles of Confederation--they effectively left the states free to ignore national treaties. The Supremacy Clause was designed to remedy this, and to ensure a national foreign policy.

To that end, the courts have consistently acknowledged federal supremacy in this area, even permitting otherwise legitimate exercises of state power to be trumped by national treaty commitments. At the same time, however, the courts have accepted that a treaty cannot achieve what the Constitution itself forbids, that Congress can overrule a treaty by passing a later statute, and that the president may exercise the United States's sovereign right to withdraw from preexisting treaty commitments. Moreover, the courts have been highly deferential to the president's authority to determine and shape American obligations under customary international law, as well as to interpret and apply treaties.

For example, in The Paquete Habana (1900), a case frequently cited for the statement that "international law is part of our law," the Supreme Court concluded that fishing boats are generally exempt from naval capture during times of war. It did not suggest, however, that a different rule would not, or could not, apply based upon an authoritative decision by the president or a conflicting federal statute. The Court fully acknowledged that it was bound to take account of the customary rule only "in the absence of any treaty or other public act of [its] own government in relation to the matter."

Deference was also shown to national authorities, and especially the president, with regard to treaties. Of course, the courts have periodically been called upon to interpret treaties in cases where Congress has created a private right to sue, or where the treaty itself is "self-executing" and posits such a right. Where core foreign-policy interests are at stake, however, the judiciary has properly concluded that the Constitution vests the political branches with decisive authority. Although international law enjoins all nations to keep their agreements--pacta sunt servanda--the courts have not attempted to enforce this maxim, and have largely accepted the president's authority to withdraw from an agreement or suspend American performance vis-a-vis its treaty partners.

Obviously, the balance between Congress and the president has shifted over the years, largely depending on the strength of individual presidents. Nevertheless, arguments that the president must interpret American treaty commitments in accordance with congressional wishes, or that he can withdraw from a treaty only with congressional (or senatorial) consent, have not been successful.

This is not surprising. Such a rule would encompass only one type of America's international agreements: a treaty made under the Constitution by and with the Senate's advice and consent. Agreements made by the president under his own authority-so-called executive agreements--are also "treaties" for international--law purposes, although they are made and unmade by the president alone. Moreover, although treaties are the "supreme Law of the Land," unlike federal statutes or the Constitution itself their character as such depends entirely on their continuing validity as international obligations. If the international rights and duties created by a treaty are discharged, denounced, or suspended, as international law permits in various circumstances, this will effectively vitiate their domestic legal status.

Although the Constitution's framers clearly believed in a "law of nations," they did so not because they intended to subject the American polity to the changing dictates of "international" opinion. For them, the law of nations was one aspect of natural law to which all were subject as God's creatures. When it came to the very practical business of government, however, the framers merely ensured that the authority to define and execute the United States's international obligations was vested in the federal government, rather than the states, with the president as the dominant player. Otherwise, they left the United States free to operate like any other sovereign power.

Messrs. Rivkin and Casey are partners at the law firm Baker & Hostetler, LLP. They served in the Justice Department under Presidents Reagan and George H. W. Bush.