International Law, Democracy and History

by David Sloss

During the 1790s, the Supreme Court decided numerous cases involving Article 17 of the 1778 Treaty of Amity and Commerce with France. These cases all arose in the context of an ongoing naval war that pitted France against England and Spain. France commissioned several privateers to attack British and Spanish merchant ships. The French privateers brought captured ships to U.S. ports in the hope of selling the captured property for financial gain. Ship owners or their representatives filed suit in U.S. courts, alleging that the ship and its cargo had been seized unlawfully. In response to these suits, the French defendants consistently argued that Article 17 of the treaty with France precluded the district court from exercising jurisdiction.

In the three-year period from 1794 through 1796, the Supreme Court decided sixteen cases that followed this basic pattern. (Most of these cases were decided without any written opinion. The summary provided here is based on research in the Supreme Court archives.) All sixteen cases fell within the scope of the statutory grant of admiralty jurisdiction under the 1789 Judiciary Act. Even so, the Court dismissed thirteen of the sixteen cases on the grounds that the 1778 treaty with France precluded the district courts from exercising the jurisdiction conferred by statute.

From the perspective of a modern American lawyer, these cases raise at least two important constitutional issues. First, the accepted doctrine today is that a later-in-time statute trumps an earlier-in-time treaty. However, in thirteen cases that were dismissed for lack of jurisdiction, the Court disregarded the later-in-time statute, which granted jurisdiction, and applied the earlier-in-time treaty, which barred the exercise of jurisdiction. Thus, all thirteen cases are inconsistent with the later-in-time rule.

Second, the accepted doctrine today is that the treaty power can be used to regulate matters, such as the jurisdiction of federal courts, that are within the scope of Congress’ Article I powers. John Yoo has argued that this doctrine is contrary to the original understanding. Yoo claims that, as a matter of original intent, the treaty power could not be used to regulate matters entrusted to Congress under Article I of the Constitution. If Professor Yoo is correct, the Supreme Court handed down thirteen decisions in the first decade after adoption of the Constitution that were contrary to the original understanding.

It is not my purpose here to debate the merits of these constitutional issues. My point is somewhat different. Despite the fact that British and Spanish plaintiffs hired the very best American lawyers to represent them, and despite the fact that those lawyers raised a wide variety of creative arguments in support of their clients’ claims, the available records suggest that none of the lawyers who worked on these cases ever raised any constitutional arguments. The lawyers litigated the cases on the basis of international law and the judges decided the cases on the basis of international law. Even though cases involving prizes captured by French privateers filled more than twenty percent of the Supreme Court docket in the first decade after adoption of the Constitution, and even though those cases – from a modern standpoint – seem to invite constitutional decision-making, the cases did not produce any constitutional decisions.

The question arises: why did the lawyers and judges choose to disregard the constitutional issues that were present just beneath the surface of these cases? I suggest that one partial explanation is that the lawyers who litigated these cases, and the judges who decided them, were much more familiar with international law than they were with constitutional law. International law was an integral part of their legal training and their indoctrination into the legal profession. In contrast, constitutional law was something that they perceived as unfamiliar, strange, perhaps even “foreign” to their way of thinking. The analogy to current academic disputes is obvious. Contemporary scholars who advocate reliance on domestic constitutional law, and who criticize reliance on international law, may be voicing a certain level of discomfort with that which is unfamiliar, in the same way that lawyers and judges in the 1790s preferred to rely on international law, rather than constitutional law, because international law was familiar to them.

International law skeptics may respond as follows. The objection to judicial reliance on international law is not merely a matter of preference for that which is familiar. Judicial reliance on international law is objectionable because it is anti-democratic. This objection leads to my theoretical point. As I argue at length in a forthcoming article, judicial application of international law has the potential to be democracy enhancing. Whether it is democracy enhancing depends on two things. First, what do we mean by democracy? Second, how do judges apply international law?

With respect to the first point, I will adopt John Hart Ely’s theory of democracy, as articulated in his classic book, Democracy and Distrust. At the risk of over-simplifying, the core of Ely’s theory is that democracy is enhanced by minimizing judicial lawmaking, and maximizing legislative lawmaking. He criticizes excessive constitutional lawmaking by the judiciary. When judges decide cases on constitutional grounds, they sometimes usurp the legislature’s lawmaking function. Ely recognizes that constitutional lawmaking by the judiciary is legitimate in some cases, but he would restrict the scope of judicial lawmaking to maximize opportunities for legislative deliberation.

To see how Ely’s theory applies to the judicial application of international law, consider the case of Hamdan v. Rumsfeld as an example. As readers of this blog know, the petitioner in Hamdan is an alleged member of Al Qaeda who is detained at Guantanamo Bay. He filed suit to challenge the government’s plan to subject him to trial by military commission. Although his suit raises a number of complex legal issues, his fundamental claim is that trial by military commission would deprive him of his right to a fair trial. One approach the Supreme Court could have taken, but chose not to take, would have been to resolve the case on procedural Due Process grounds. If the Court had adopted this approach, it could have focused solely on domestic constitutional law, and issued a ruling that specified the requirements of procedural Due Process. This approach would have avoided reliance on international law, but it would have been anti-democratic, in Ely’s sense of the term, because it would have foreclosed options for the political branches by holding that certain procedures are unconstitutional.

Instead, the Supreme Court in Hamdan relied expressly on international law, and used international law to promote democratic decision-making. The Court held, first, that the proposed military commission procedures were inconsistent with U.S. obligations under the Geneva Conventions, and second, that the President had to obtain Congressional approval if he wanted to utilize military commissions. In short, the Court invoked international law to enhance democracy by promoting a legislative decision-making process, instead of using constitutional law to bypass the legislative process. Thus, Hamdan demonstrates that judicial reliance on international law as an alternative to constitutional decision-making can be democracy enhancing.

In sum, it is overly simplistic to say that judicial application of international law is anti-democratic. From the perspective of Ely’s theory, it is the constitutionalization of American law, not the internationalization of American law, that is anti-democratic. Moreover, if courts apply international law intelligently, judicial reliance on international law can provide a partial solution to the problem of excessive reliance on constitutional law. No doubt, the approach I am suggesting here – using international law as an alternative to constitutional adjudication – sounds radical to modern lawyers. But this proposal would not have seemed radical to the Founding generation. Lawyers and judges in the 1790s routinely relied on international law to resolve cases that modern lawyers would tend to frame in constitutional terms. If we genuinely want to learn from the Founders, law schools should educate the next generation of lawyers so that they, like their 18th century predecessors, view international law as an essential ingredient of their legal training.

http://opiniojuris.org/2007/03/11/international-law-democracy-and-history/

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