26 Jul International Law in the U.S. Supreme Court: A Response to Professor Golove’s Essay
Thank you to Opinio Juris for having me back. It’s always a great pleasure and honor to guest blog at such a terrific forum.
The volume of essays under review is an impressive and extraordinarily useful collection. I learned something—and often many things—from every essay I read. I was consistently impressed with how the authors discussed controversial and complicated subjects with great balance and sensitivity to opposing points of view.
Parroting the format of Part V of the book, I’ve decided to post something in the nature of an additional “response essay” to David Golove’s fascinating essay on “The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition.”
Like Mike Ramsey (Response Essay in Part V.E.) I find much to admire but also some things to question and debate in Professor Golove’s thought-provoking contribution to this volume. Professor Golove argues that the war-on-terror decisions in Hamdi, Rasul, Hamdan and Boumediene were striking departures from more recent precedent and principles, but were fundamentally consistent with three deeper themes from earlier periods of American constitutional history, what Professor Golove calls the three “basic features of the traditional American Just War Constitution”: (A) the President was constitutionally required to observe the laws of war; (B) and so too Congress; and (C) the judiciary had an active role in policing Executive branch compliance with the laws of war (at pp. 564-65).
In this essay, Professor Golove does not extensively discuss the evidence supporting these three claims. He refers the reader instead to two unpublished manuscripts (at p. 564 n.19). I eagerly await the publication of these pieces. I am sure that, like all of Professor Golove’s work, they will be immensely erudite, well-researched and creative. I have to say, though, that I think it might be difficult to fully defend all three propositions. (B) is the most problematic, in my opinion, followed by (C). Proposition (A) is, in my view, partially but not wholly correct, varying over time and context and by historical actor.
Like Professor Golove, but even more so, I am space constrained and so cannot set out much of the relevant historical evidence. I will just note a few cases relevant to claim (B). Historically, the high point of the power and influence of customary international law in the U.S. legal system was in the Founding and early antebellum periods. Yet even at that time, numerous Court decisions, often authored by Chief Justice Marshall, made clear that Congress had the authority to depart from, or to modify for domestic purposes, rules of the unwritten law of nations, including the laws of war. See, e.g., Thirty Hogsheads of Sugar v. Boyle (1815); The Nereide (1815); The Schooner Adeline (1815); The Schooner Exchange v. McFaddon (1812). To my knowledge, the Supreme Court (in a majority opinion) has never once held or suggested otherwise.
There is much to say about Professor Golove’s claim (C), and Professor Ramsey’s excellent response essay makes a good start. I am content to await the publication of Professor Golove’s two articles before fully joining issue on the historical questions, but for now will just make one comment: Professor Golove’s analogy between judicial supervision of the Executive in prize cases in earlier periods and today’s judicial supervision of the Executive’s war-on-terror detention operations (at pp. 569-71 ) is not entirely persuasive to me because I think other factors must be accounted for. Professor Golove reads the history of U.S. courts supervising Executive prize captures as a story about the judiciary independently and assertively securing the rule of law in an area where Executive mistakes or over-reaching could be expected to frequently infringe private rights. So too is aggressive judicial review needed in the war-on-terror detention context, he contends, because the complexities of the conflict make it quite difficult to accurately identify enemies. I think a different or at least supplemental story can be told about why U.S. courts were so actively involved in prize litigation. Briefly, the reasons are (i) the Constitution commanded or at least contemplated it, in Article III’s admiralty clause; (ii) Congress and the Executive commanded or at least contemplated it, in numerous statutes and proclamations which stated or assumed that federal courts should hear prize cases and determine them according to international law; and (iii) in order to get the economic benefit of seizing enemy prizes, the captor needed title to the vessel or cargo that would be respected worldwide; judicial review and sign-off on the seizure provided this good title. Understood as flowing from these premises—either instead or in addition to Professor Golove’s premises—judicial involvement in prize disputes does not provide any large amount of support for the strikingly aggressive judicial review (called “judicial imperialism” by Prof. Ramsey’s response essay) seen in Boumediene, Hamdan etc., especially when, as in Boumediene, the Court overrides policies set by the President and Congress jointly.
As I said at the outset, the entire collection—and most certainly Professor Golove’s provocative contribution—is of the highest quality and well worth a read. Many thanks to the editors and authors for producing such a terrific piece of work.