The meaning of "Offenses against the Law of Nations"

by Jon Roland, Constitution Society

Art. I Sec. 8 Cl. 10 of the Constitution for the United States delegates the power to Congress to "define and punish ... Offenses against the Law of Nations". It is important to understand what is and is not included in the term of art "law of nations", and not confuse it with "international law". They are not the same thing. The phrase "law of nations" is a direct translation of the Latin jus gentium, which means the underlying principles of right and justice among nations, and during the founding era was not considered the same as the "laws", that is, the body of treaties and conventions between nations, the jus inter gentes, which, combined with jus gentium, comprise the field of "international law". The distinction goes back to ancient Roman Law.

Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone's Commentaries, and prosecution of those who might violate them:

(1) No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.

(2) Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.

(3) Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.

(4) Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.

(5) Care and decent treatment of prisoners of war.

(6) Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.

(7) Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one's territory or are found on the high seas.

And, although it was not yet firmly established with all nations in 1788,

(8) Prohibition of enslavement of foreign nationals and international trading in slaves.

To expand on point (2), Blackstone, in discussing border passes, stated “by the law of nations no member of one society has a right to intrude into another … [I]t is left in the power of all states, to take such measures about the admission of strangers, as they deem convenient."

No subsequent additions to the "law of nations" could have the effect of expanding the delegated powers under the Constitution. Ratification froze those powers at the moment of ratification. Only the amendment procedures provided under the Constitution can add to, subtract from, or modify them.

Some confusion on whether a treaty could confer additional powers on government was introduced by the opinion in Missouri v. Holland, 252 U.S. 416 (1920), which held that a migratory bird treaty with Canada enabled the national government to regulate the protection and harvesting of migratory birds within the United States, even though without the treaty the national government would not have the power to do so. This contradicts the ancient Law of Agency whereunder an agent, in this case federal officials, may not acquire new powers from the exercise of a power, but only by delegation from the principal. However, the opinion may also be read to say that it is only state governments that are required by a treaty to exercise their already delegated powers, and that federal courts have appellate jurisdiction over cases of state compliance with federal treaties.

The case law was further muddied by the opinion in the case of United States v. Belmont, 301 U.S. 324 (1937), which held that executive agreements are entitled to the same constitutional authority as treaties in the relation between the states and the federal government, and that the supremacy clause makes both treaties and executive agreements supreme over state power as to the subjects covered by them. This decision has given rise to alarm by civil libertarians, because there is no congressional approval required for executive agreements, much less the two-thirds vote of the Senate required for treaties, or the ratification by three-fourths of the states required for constitutional amendments. By this reasoning, the president acting in collusion with any foreign government could effectively eliminate states except as voting districts.

Based on these precedents, then Secretary of State John Foster Dulles promulgated what some call the "Dulles Doctrine" that treaties, executive agreements, and votes in the United Nations, could effectively amend the U.S. Constitution and expand the powers of the federal government without limit.

However, this misunderstanding about whether the constitution could be amended through the making of treaties was denied in the case of Reid v. Covert, 354 U.S. 1 (1957):

"This court has regularly and uniformly recognized the supremacy of the constitution over a treaty" [Reid, at p. 17].

"... when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict, renders the treaty null." [Reid, supra, citing Geofroy v. Riggs, 133 U.S. 238, at p. 267]

"No agreement with a foreign nation (no exec. orders, no Pres. directives, no "accords" etc.) can confer power on Congress or any other branch of government, which is free from the restraints of the constitution" [Reid, supra].

Despite the decision in Reid v. Covert, however, the dominant faction in the federal government continues to maintain the Dulles Doctrine, arguing that Reid only applied to infringements on rights recognized in the Constitution, and did not prevent expansion of federal powers through treaty, even though one of the fundamental rights recognized in the Tenth Amendment was the right not to have government exercise powers not delegated to it.

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Original date: 1998/7/4 —