Why Federal Courts Apply the Law of Nations Even Though it is Not the Supreme Law of the Land

Authors

Anthony J. Bellia, Notre Dame Law SchoolFollow
Bradford R. Clark, George Washington University Law SchoolFollow

Document Type

Article

Publication Date

2018

Publication Information

106 Geo. L.J. 1915 (2018)

Abstract

We are grateful to the judges and scholars who participated in this Symposium examining our book, The Law of Nations and the United States Constitution. One of our goals in writing this book was to reinvigorate and advance the debate over the role of customary international law in U.S. courts. The papers in this Symposium advance this debate by deepening understandings of how the Constitution interacts with customary international law. Our goal in this Article is to address two questions raised by this Symposium that go to the heart of the status of the law of nations under the Constitution. The first question is whether the Constitution adopted the law of nations (or some subset of it) as the supreme law of the land. This fundamental question has profound implications for the proper role and status of customary international law in the U.S. federal system. The second question is whether the Constitution’s allocation of certain powers to the political branches of the federal government has any bearing on the power or obligation of federal courts to apply the law of nations. Resolution of this question is particularly important if one concludes, as we do, that the Constitution did not adopt the law of nations itself as supreme federal law.

Recommended Citation

Anthony J. Bellia & Bradford R. Clark, Why Federal Courts Apply the Law of Nations Even Though it is Not the Supreme Law of the Land, 106 Geo. L.J. 1915 (2018).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1358