The meaning of "Offenses against the Law of
by Jon Roland, Constitution Society
Art. I Sec. 8 Cl. 10 of the Constitution for the United States
power to Congress to "define and punish ... Offenses against the
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
nations, and during the founding era was not considered the same
"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
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
(2) Honoring of the flag of truce, peace treaties, and boundary
No entry across national borders without permission of national
(3) Protection of wrecked ships, their passengers and crew, and
from depredation by those who might find them.
(4) Prosecution of piracy by whomever might be able to capture
even if those making the capture or their nations had not been
(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
(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
No subsequent additions to the "law of nations" could have the
effect of expanding the delegated powers under the Constitution.
froze those powers at the moment of ratification. Only the
provided under the Constitution can add to, subtract from, or
Some confusion on whether a treaty could confer additional powers
government was introduced by the opinion in Missouri v.
Holland, 252 U.S.
416 (1920), which held that a migratory bird treaty with Canada
national government to regulate the protection and harvesting of
within the United States, even though without the treaty the
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
However, the opinion may also be read to say that it is only state
that are required by a treaty to exercise their already delegated
that federal courts have appellate jurisdiction over cases of
with federal treaties.
The case law was further muddied by the opinion in the case of United
v. Belmont, 301 U.S. 324 (1937), which held that executive
are entitled to the same constitutional authority as treaties in
between the states and the federal government, and that the
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
libertarians, because there is no congressional approval required
agreements, much less the two-thirds vote of the Senate required
or the ratification by three-fourths of the states required for
amendments. By this reasoning, the president acting in collusion
foreign government could effectively eliminate states except as
Based on these precedents, then Secretary of State John Foster
promulgated what some call the "Dulles Doctrine" that treaties,
executive agreements, and votes in the United Nations, could
the U.S. Constitution and expand the powers of the federal
However, this misunderstanding about whether the constitution
amended through the making of treaties was denied in the case of Reid
Covert, 354 U.S. 1 (1957):
"This court has regularly and uniformly recognized the supremacy
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,
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
other branch of government, which is free from the restraints of
constitution" [Reid, supra].
Despite the decision in Reid v. Covert, however, the
in the federal government continues to maintain the Dulles
that Reid only applied to infringements on rights recognized in
Constitution, and did not prevent expansion of federal powers
even though one of the fundamental rights recognized in the Tenth
the right not to have government exercise powers not delegated to