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
(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.
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
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
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.