International Law in the U.S. Supreme Court: A Presumption of Extraterritoriality?

When Bill Dodge, Michael Ramsey and David Sloss approached me to write a chapter for their forthcoming book, I told them that I would be interested in doing so as long as I did not have to rehash the tired contemporary debate about constitutional comparativism. They quickly agreed and I had the good fortune to write a chapter on international law as an interpretative tool in the Supreme Court from 1901 to 1945. I had long been interested in the subject of the presumption against extraterritoriality and had great fun revisiting the landmark cases of American Banana, Sisal Sales, and Alcoa.

As with most writing projects, once one is steeped in research some surprising revelations occur. For me that revelation came when I discovered a strong parallel line of authority that presumed federal law should apply extraterritoriality to effectuate the purpose of federal law. In other words, since at least United States v. Bowman the Supreme Court has held that some statutes must be interpreted to apply abroad because any other interpretation would undermine the essential purpose of the statute. As the Court put it in Bowman, “Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.”

Here’s a brief excerpt of my Chapter 8 addressing the “government purpose” test that presumes the extraterritorial application of U.S. law:

The Bowman Court concluded that “the same rule of interpretation [against extraterritoriality] should not be applied to criminal statutes which are … not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated.”….

Criminal statutes that logically presume extraterritorial application include states punishing (1) a consul for certifying a false invoice; (2) the forging of ship’s papers; (3) the bribing of a U.S. naval officer; (4) the disposal of property captured as prize with the intent to defraud the United States; (5) and the stealing of arms, money, or other property furnished by the United States for military or naval service….

These cases represent early and important limits on the scope of the traditional presumption against extraterritoriality. They suggest that, contrary to the reasoning of American Banana, defining an act as lawful or unlawful need not depend solely on a universal rule of deference to the law of the country where the act was done. Rather one must look to the express or implied will of Congress in light of (1) the government interests at stake; (2) the locus of evils to be avoided through regulation; (3) and the appropriateness of asserting jurisdiction in light of considerations of international comity.

Many of the categories that form the basis for this presumption of extraterritoriality have found support in international law under the protective principle of prescriptive jurisdiction. Section 403(3) of the Restatement on Foreign Relations, that “a state has jurisdiction to prescribe law with respect to … certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.” But international law is silent as to when the presumption against extraterritoriality should apply, and it is useful to consider whether the government purpose test of Bowman should have wider application. The Supreme Court has only cited Bowman one time since 1958, and even that one citation in Hartford Fire was for the general proposition that the “Court has repeatedly upheld its power to make laws applicable to persons or activities beyond our territorial boundaries where United States interests are affected.”

This one avenue of discovery illustrates the value of this project. By systematically analyzing the role of international law in Supreme Court jurisprudence across the centuries, the Sloss, Ramsey, and Dodge book has uncovered dozens of avenues for further inquiry. One could take any chapter from the book and find buried treasure from old Supreme Court cases.

As with most law books by legacy publishers, it is way overpriced at $117, beyond the reach of almost everyone except law firms and law school libraries. Even the Kindle edition is over $100, which can only be justified by fears that Kindle sales will cannibalize hard copy sales.

Nonetheless, the book is a remarkable accomplishment that is a credit to the authors and the editors. I am confident it will become a standard text for analyzing the history of international law in Supreme Court jurisprudence.