The Status of the Law of Nations in Early American Law

A perennial issue is the relationship of international law to the domestic law of the United States. The question appears in various con-texts, but in each the central problem is determining whether the body of customary international law is binding on the national and state governments. Discussions about this subject inevitably lead to consideration of separation of powers at the national level. If the United States may depart from international law, which branch of government has the power to do so?

If one branch transgresses international law, is this action binding on the others?' For example, a recent case examined the executive's authority to detain aliens in violation of international law,and thus implicitly raised the issue of the judiciary's authority to order the executive to conform to international norms. Considering the importance of the basic issues involved, it is not surprising that a small industry of scholarship has grown around them,with each generation of scholars revisiting the territory. Most of these works make an excursion into the legal history of the eighteenth century, presumably with the idea that this background will help explain the place that international law was intended to occupy under the Constitution. Those who sympathize with imposing at least some customary international legal constraints on the United States have found this early history to be a particularly fruitful source of authority.

A large number of declarations can be assembled from leading figures of that era to the effect that the law of nations was a part of American law and in important respects binding on our government. For others who are skeptical of placing limits on the domestic law of the United States through application of customary international law, the task has been to explain away the significance of this history.