International Law in the U.S. Supreme Court: The Antelope and Other Mysteries

It is a pleasure to hold International Law in the U.S. Supreme Court in my hands and flip through its pages. It is a volume that I have long wished for – a comprehensive reference book, in the pages of which one can be confident of finding an intelligent summary all the major Supreme Court cases from any given era. I imagine that any lawyer litigating a case involving international law in the Supreme Court will want it handy in the early stages of briefing. Law student writing research papers will be directed to it as a first stop in getting their bearings. Judges may consult it. It is a very useful book. At a time when the Chief Justice of the United States complains that most legal scholarship is entirely irrelevant to practicing lawyers (echoing complaints by others), it is pleasing to have a genuinely useful book at which to point. Hurrah for useful and comprehensive academic books!

At the same time, I must admit to feeling some frustration as I delved deeper into the book, a frustration that the commentary chapter by John Witt gives voice to in some ways: at every turn, I want to know more, often a whole lot more. What was really going on in that case? What was the social and political context? Were these cases important, or not important, in society at the time? What else was going on? Was there a war about to begin, a contentious election, or a diplomatic crisis? Who brought the case, and why did they decide to argue about international law? Who were their lawyers? Who had more money? Which of these people owned slaves? Where were they from?

This is perhaps unfair. The book is already 618 pages, and as the introductory post to this forum suggests, it is meant to be a starting point; as Michael Ramsey writes, “we hope our account of how the Court has used international law in its decisions will form the basis for broader inquiries concerning why the Court did what it did, and to what effect.” And yet, I worry at the consequences of attempting a grand narrative of international law in the Supreme Court without really, actually, trying to figure out why the Supreme Court did what it did, and to what effect.

To illustrate my point, let’s take the case of The Antelope — a popular case, as it turns out; according to the index, it is discussed in eleven different parts of the book, in many different chapters. The Antelope was the 1825 case in which the Supreme Court, in an opinion by Chief Justice Marshall, found that the American capture of a Spanish slave ship was not authorized by the law of nations. A few years earlier in 1822, Justice Story on circuit in La Jeune Eugenie had held that the owners of a French slave ship captured by the American navy were not entitled to its return. As Witt points out in his critical chapter, according to the standard doctrinal account “the pair of cases serves as a case study in the ostensible transition from natural law to positivism.” That is indeed how these cases are presented in several chapters of this book, with Story’s “fuzzy-headed natural law theories” (chapter 3) eventually losing out to the supposedly more modern legal positivism of Marshall’s opinion. But is that really what this pair of cases is about?

The Antelope is one of the few nineteenth century international law cases in the Supreme Court that I actually know enough about to feel that I really understand what was going on, thanks in part to John Noonan’s excellent book on the case and in part to my own obsession with the relationship between the slave trade and international law. As Witt points out, framing these cases as about positivism versus natural law leads one to miss large parts of why the cases were actually decided the way they were (and along the way, probably also to misunderstand what was going on with naturalism and positivism in this time period.) Just to begin with, as we all probably know, Justice Story was not fuzzy-headed; when one reads the opinions closely, La Jeune Eugenie is not all about some fuzzy notion of natural law, though there is some natural law is in there, and is in fact a fairly careful application of conflict of law principles (on which Story, of course, wrote the book). More importantly, the cases were inextricably intertwined with a series of diplomatic negotiations with foreign countries concerning the slave trade and other issues of international relations, and also occurred in the context of national political divisions related both to the issue of slavery and to raw electoral politics (including, as Witt points out, Secretary of State John Quincy Adams’ presidential ambitions). Both cases were the subject of diplomatic pressure. High elected officials — the President, the Secretary of State, and the Attorney General — were aware of and involved in the cases. Justice Story was fully aware of the diplomatic and political context – not only had the French consul interceded in the case, his opinion mentions the recent international treaty negotiations on the slave trade among European powers at Aix-la-Chappele. Chief Justice Marshall was also no doubt aware of the context. The Antelope was actually docketed at the Supreme Court in early 1822, but was not argued or decided for three full years – an astonishing delay that was not an accident. During those three years, the U.S. government was engaged in intense negotiations with the British over a slave trade treaty, which ultimately was signed by President Monroe but which failed because of amendments attached by the Senate on ratification. Many other things happened between La Jeune Eugenie in 1822 and The Antelope in 1825 (including the speech announcing the Monroe doctrine as the cornerstone of American foreign policy, a presidential election, etc.). It was these developments, not different views between Marshall and Story on legal positivism, that explain the difference in outcome between the cases. The context is everything.

Even if one is mainly interested in the rise of legal positivism in international law as a matter of doctrine, one wants to know more about what was happening in this period. Of course, even going back to Grotius and earlier, writers on the law of nations recognized positive law as a source of legal obligation well as natural law theories. But I think the authors of various chapters in the book are absolutely correct in saying that, as a descriptive matter, positivism did become a more dominant strand over the course of the nineteenth century. But I still don’t know after reading this book much more about why more positivist ways thinking and talking about the law became more popular over the nineteenth century. What else was going on in law and society that explained their greater rhetorical pull? What was really going on?

The stakes are raised by the fact that our dominant constitutional interpretive methodologies and our common law tradition leads our contemporary legal system to be interested in the past: as I said, lawyers and judges actually care what the U.S. Supreme Court did with international law in the nineteenth century. The fate of prisoners and torture victims today may depend on it. That in itself is a bit of a strange thing, when you think hard about the implications, but it also leads to methodological differences that divide lawyers who are interested in history from historians who are interested in law, and creates sometimes intractable problems for the poor scholar who tries to be both. When a lawyer writes about an issue, the conventions of the profession require that abstract and eternal principles be extracted from unrelated cases over time; there is a tendency to create continuity or at least a coherent narrative of change. From what I can observe, every instinct of the professional historian calls for things to be situated in their very own social context, and if there are grand narratives for the historian, they are often quite different from the jurisprudential ones that matter to the lawyers. I don’t mean this as a repeat of the conventional critique of “law office history”; in fact, I don’t think historians fully appreciate that lawyers are sometimes trying to do something else entirely with the past, that they are playing a game with rules of relevance that are entirely different from professional history (and, oddly enough, that this particular use of the past is something with very deep roots in the Anglo-American legal tradition, as John Phillip Reid’s discussion of the forensic history of much earlier lawyers reveals). But from the perspective of lawyers or historians or hybrids of the two, more knowledge is certainly better than less.

And so, from each of the chapters in this book, I imagine a future radiating series of articles or books answering some of the questions that remain unanswered in this one. Perhaps it is impossible to ever fully understand the law or the past, but I for one want to know more. As with every summer blockbuster, I enjoyed this one – but I am also looking forward to the sequels.