constitutional law

john-paul-stevens2Margaret Mitchell got the Reconstruction Era all wrong. So said Justice John Paul Stevens in an address to the University of Georgia School of Law, the highlight of today’s Georgia Law Review symposium. Stevens, who retired from the U.S. Supreme Court in 2010, at age 93, spoke here in Athens at the university’s Chapel, used during the Civil War as a hospital for wounded Confederate soldiers – and afterward, as quarters for “Federal occupation troops.”

Stevens recalled a day in December 1939 when, as a junior in college, he and his family of Chicagoans watched the newly released adaptation of Mitchell’s epic “Gone With the Wind” from the balcony of an Atlanta theater. It was, as is well known, a Civil War story told from the perspective of a petulant, pampered, proslavery heroine, Scarlett O’Hara (below). (photo credits here and here) Stevens said that when the movie screen depicted Atlanta ablaze as a result of Union General William T. Sherman’s onslaught, the emotion of the assembled Georgians was intense. He reported:

scarlett‘I was afraid even to whisper a comment lest my accent reveal the fact that Yankees were in the audience.’

Stevens used the anecdote to introduce “Originalism and History,” the theme of his address. Resuming a refutation of originalism he had launched in 1985, in  response to a speech by then-Attorney General Edwin Meese (as I wrote in a Northwestern University Law Review article last year), Stevens stressed that “history is at best an inexact field of study, particularly when applied by judges.” For this reason, “the doctrine of original intent may identify a floor that includes some of the rule’s coverage, but it is never a sufficient basis for defining the ceiling.”

Atlanta-born Margaret Mitchell‘s version of the Civil War and its aftermath – a version that “influenced the thinking of millions of readers” – evinced sympathy for the antebellum South and hostility toward Reconstruction, Stevens said. Mitchell called the Reconstruction Republicans who controlled Georgia immediately after the war “incompetent and corrupt.” Stevens offered contrary evidence: the Reconstructionist governor reviled by Mitchell was acquitted of such charges and went on to become one of Atlanta’s leading figures, while the gubernatorial opponent whom Mitchell extolled is now believed to have been a leader in the state’s Ku Klux Klan. Uncertainty regarding that allegation served to underscore Stevens’ concern respecting judicial overuse of history:

‘The fact that the Klan’s activities were shrouded in so much secrecy has not only prevented historians from positively confirming that identification, but also explains why ambiguity characterizes so many important historical events.’

Another such event was the 1876 Presidential contest between Rutherford B. Hayes and Samuel Tilden. As he had in an August essay that the New York Review of Books titled “The Court & the Right to Vote: A Dissent,” Stevens pointed to the post-election withdrawal from the South of federal troops as a pivotal moment in American history. That moment might not have occurred, or might be viewed quite differently, absent a “‘reign of terror'” that suppressed the Southern Republican electorate, white and black alike. (Stevens drew the quoted phrase from a dispatch reprinted by his former colleague, William H. Rehnquist, in Centennial Crisis (2005).)

Today’s talk then moved beyond the Reconstruction Era, encompassing jurisprudential topics as varied as the Constitution’s religion clauses, the incorporation doctrine, the desegregation decision in Brown v. Board of Education (1954), and political gerrymandering. Discussed was the 2d Amendment right announced not long ago by a majority of the Court, as well as a same-sex sexual harassment judgment written by Stevens’ longtime sparring partner, Justice Antonin Scalia. Each example was deployed to drive home Stevens’ central point, regarding what he calls the sovereign’s duty to govern impartially: History is relevant but not dispositive. No less important to a judge construing terms like “equal protection” and “due process of law” is the contemporary social meaning of those constitutional phrases.

In retrospect, the early 2000s were the salad days of U.S. Supreme Court citations to foreign and international law.

As I wrote in International Law and Rehnquist-Era Reversals (2006), 3 milestone decisions included overt evidence that a majority of Justices, in the course of deciding to overrule precedents, had given consideration to norms contained in international treaties and found in the practice of foreign countries:

► Justice John Paul Stevens dropped a footnote citation to a brief by the European Union in his opinion for the Court in Atkins v. Virginia (2002), which held that the execution of mentally retarded persons violated the Cruel and Unusual Punishments Clause of the 8th Amendment to the Constitution.

► Outlawing the execution of juveniles, Justice Anthony M. Kennedy’s opinion for the Court in Roper v. Simmons (2005) stressed that international treaties and states’ practice forbade such executions.

► And in his opinion for the Court in Lawrence v. Texas (2003), Kennedy discussed British legal practice and a decision of the European Court of Human Rights to refute a prior judgment’s assertion that governmental bans on “homosexual conduct” were “firmly rooted in Judeao-Christian moral and ethical standards.”

That refutation paved the way for the invalidation of an anti-sodomy law in Lawrence – a decision on which the Court relied on June 26 of this year, when it, again through a majority opinion by Kennedy, invalidated a law denying federal benefits to married same-sex couples. (Prior posts here and here.)

antonin_scalia-photographThe trio of early 2000s decisions prompted criticism, even specious calls to impeach members of those majorities, as I have written here and here. Dissenters likewise inveighed against such citations. For example, Justice Antonin Scalia (photo credit), quoting an earlier opinion by Justice Clarence Thomas, wrote in Lawrence:

The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.”

Members of the Court’s majorities in those 3 decisions pushed back in public speeches. They defended consideration of foreign norms as a responsible deliberative practice, an examination of nonbinding yet potentially persuasive sources not unlike their frequent, and accepted, examinations of useful law review articles.

Nevertheless, the criticism seems to have taken its toll: although amici continue to file briefs informing the Court of pertinent foreign norms, in the last decade citations to such sources largely vanished. The June 26 judgment in the same-sex marriage case, United States v. Windsor, stands as a curious exception.

To be sure, Windsor and a related case, Hollingsworth v. Perry, attracted amicus briefs discussing foreign and international law. Indeed, international lawyers filed briefs that cited international developments both in favor of and against gay marriage. Moreover, as I then posted, the global legal landscape on gay marriage continued to shift even as the cases were argued and under advisement.

Yet not a word about any of this in any of the opinions in Perry or Windsor. With one exception, that is.

Challenging the Court’s decision that it had jurisdiction to decide Windsor, Justice Scalia took on the majority’s contention that Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819) had made clear that the Court has power to review the constitutionality of federal statute. In a dissent joined by Chief Justice John G. Roberts Jr. and by Justice Thomas, Scalia contended that the refusal of President Barack Obama to defend the statute meant that both the government and the claimant agreed, so that there was no issue left to decide. (The majority disagreed because the government still required the claimant to pay taxes owed under the disfavored  statute.) Ridiculing the Court’s view of its power, Scalia wrote:law

The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.

One senses not only Scalia’s disagreement with the majority on an issue of standing, but also, perhaps, his frustration that Justices were aware of global changes, and likely read the briefs discussing them, yet eschewed including a citation that marked such consideration. That 2d point has merit. Supporters of foreign-norm consultation no less than opponents ought to urge – in service of the values of transparency and reasoned judgment – that Justices who have looked to such norms write that they have done so.

In “John Paul Stevens, Originalist,” an article published last year in Northwestern University Law Review, I examined how Justice Stevens, during his 34-plus years on the U.S. Supreme Court, had treated the interpretive methodology known as originalism. I wrote of a 1985 speech in which Edwin Meese III, President Ronald Reagan’s Attorney General, “urged adoption of a single standard –  ‘a Jurisprudence of Original Intention’ that would obligate judges to be guided solely by what the Framers chiefshad meant when they selected the words of the Constitution.'” Justice Stevens pushed back in his own speech the same year and in a 1986 lecture, The Third Branch of Liberty. “Stevens,” I wrote, “identified ‘the probable intent of the Framers’ to give to ‘future generations of judges’ the power and duty to check majoritarian abuses of individual liberty.” After examining Stevens’ treatment of history in cases involving the 2d Amendment, my article quoted Stevens’ Five Chiefs: A Supreme Court Memoir 226 (2011):

‘Historical analysis is usually relevant and interesting, but it is only one of many guides to sound adjudication.’

Though Stevens left the bench in 2010, he scarcely may be called retired. He’s written the just-quoted memoir and several New York Review of Books essays, and given a host of speeches. The latest of these was delivered in Louisville, Kentucky, a couple weeks ago – just 2 days before Stevens celebrated his 93d birthday, to be exact. Entitled “Glittering Generalities and Historic Myths,” it illustrates the role that history continues to play in Stevens’ thinking about law. Stevens identified instances in which the Court contributed to the making and maintenance of myths, some of which, he said, “have a longer life expectancy than the truth.” Identification of each myth implied disapproval of the decisions that had relied on them.

► Thus incurring criticism was the Court’s recent 2d Amendment cases; in particular, the most recent, McDonald v. Chicago (2010).

As I described beginning on 757 of my “Originalist” article, McDonald marked the last case in which Stevens wrote. His solo opinion drew retort from his longtime sparring partner on matters of constitutional interpretation, Justice Antonin Scalia. Stevens’ Louisville speech challenged as myth 2 views of history that underlay the majority’s invalidation in McDonald, on federal constitutional grounds, of a local gun-control ordinance: 1st, the view that the Court got it wrong in Slaughter-House Cases (1873); and 2d, the view that the Court got it right in  United States v. Cruikshank (1875).

Justices were not wrong but right in upholding local health laws in Slaughter-House, Stevens wrote, though “unfortunately” they rested their decision on a little-used, and in his view not-useful, constitutional ground. They were not right but wrong, Stevens ColfaxMassacreadded, to set aside in Cruikshank 3 convictions for the April 13, 1873, killings of scores of African-American men in Colfax, Louisiana. (image credit) (As Stevens noted, Charles Lane depicted these events in The Day Freedom Died (2009).) The release of the defendants in Cruikshank enabled a “myth that they were heroes fighting for a noble cause,” Stevens wrote, not to mention a myth “that laws that failed to preserve white supremacy were ‘misrule.'” Stevens’ speech endorsed the lower court’s articulation of state action doctrine. In an expansive rendering that anticipated the next century’s human rights jurisprudence, that court, in United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871), had defined denial of equal protection as follows:

‘Denying includes inaction as well as action, and denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for the protection of his fundamental rights, as well as the enactment of such laws.’

► Also drawing Stevens’ attention were 2 decisions dating from the World War II era – an era that, as I have written here and here, informed Stevens’ own jurisprudence in the aftermath of the terrorist attacks against U.S. targets on September 11, 2001.

quirinAddressed 1st was Ex parte Quirin (1942), in which the Court unanimously approved secret-tribunal convictions of 8 Germans who’d landed on U.S. soil with the aim of committing sabotage. Among the 8 was a man presumed a U.S. citizen, so that in post-9/11 legal discourse the judgment has been cited as authority that citizens may be treated as “enemy combatants” and thus deprived of a panoply of rights. Quirin mythology also includes, Stevens wrote, “the mythical inference that their apprehension was the product of superior intelligence work by the FBI.” (image credit) In fact, citing Jess Bravin’s Terror Courts (2013), Stevens noted that the FBI learned of the plot only when a conspirator turned himself in.

Discussed 2d was In re Yamashita (1946), in which a majority of the Court sustained an overseas U.S. military commission’s capital conviction of the general who, as Stevens wrote, “had assumed command of the Japanese forces in the Philippines shortly before the war ended.” Today thyamae decision is the taproot for the doctrine of command responsibility, by which superiors are held liable for failing to prevent their troops from committing atrocities. But it did not win the favor of Stevens, who clerked for a Yamashita dissenter, Justice Wiley B. Rutledge Jr., a couple years later. Stevens’ speech cited Yamashita’s Ghost: War Crimes, MacArthur’s Justice, and Command Accountability (2012), in which author Allan Ryan dispels “the myth that General Yamashita was a war criminal because he failed to prevent the troops under his command from committing unspeakably cruel atrocities.” In fact, Ryan’s book contends “not just that the General did not authorize any of the atrocities – but that he did not even know about them and probably could not have prevented them even if he had ….” (credit for photo of trial of Yamashita) The former Justice concluded:

‘If the prosecution’s theory of the case were applied to the American Army in the Viet Nam conflict, General Westmoreland would receive the death penalty for failing to prevent the My Lai atrocities.’

signIt seems like it was only yesterday that persons who favored marriage equality struggled for broad support. Even in the Left Coast bastion of Berkeley, we who planted “NO ON PROP 8” lawn signs awoke to find them taken, torn, or trashed. “Prop 8” was, of course,  Proposition 8, the ballot initiative that aimed to overturn a May 2008 state supreme court ruling that same-sex couples had a fundamental right to marry; in so doing, Prop 8 aimed to make a ban on such marriages part of the California Constitution. Six months after the initial ruling, on the same day in 2008 that Barack Obama was elected President, the same-sex marriage ban passed with 52% of the California vote. (photo credit)

But that was then, nearly 5 years ago. And now, as the U.S. Supreme Court takes up the constitutionality of Prop 8 and of the federal Defense of Marriage Act, America is in a very different place. Opposition to bans is ascendant in polls. Opponents are found on both sides of the political aisles – not only the lawyers trying the cases, but also the persons lending their names through amicus briefs or public statements. Notable in that last group are current President Obama, who’s moved to a position of support for gay marriage, and former President Bill Clinton, who’s repudiated DOMA though it was he who signed it into law back in 1996.

How these shifts will affect judicial deliberations is anyone’s guess, not the least because of the precise questions before the Court: Read Full Article

“‘It took us more than two centuries to admit that a law could be imperfect and the people’s representatives uninspired. That a government and its majority often act too hastily, with the result that the Constitution is mistreated. That protecting the Constitution promotes liberty. usa_french_flag_imageTwo centuries to admit that, on this point, the American Revolution has been more just than the French.'”

Thus does LeMonde quote French law professors Guy Carcassone and Olivier Duhamel. (All translations from the French original mine.)  The quote appears in “Au ‘non’ de la loi,” reporter Patrick Roger’s fascinating analysis of how a 2010 law permitting private individuals to challenge the constitutionality of statutes has transformed both the theory and practice of separation of powers in France. (IntLawGrrl Naomi Norberg described the reform in this 2009 post.)

conseilAs Roger describes and constitutional comparatists well know, post-Revolutionary France relied on the view that statutes were the expression of “volonté générale,” the “general will” advanced by 18th C. political theorist Jean-Jacques Rousseau. Inroads into that “doctrine of the infallibility” of the Parlement français began with the establishment of a constitutional council, the Conseil constitutionnel, in France’s 1958 Constitution. In its 1st decades the Conseil hesitated to question laws; that changed in 1971, when the council determined that a law did not conform to the Constitution. In so doing, Roger reports, the Conseil referred not only to the 1958 document,

‘but also to the “fundamental principles” of the 1789 Declaration of the Rights of Man and the Citizen, reprised in the preamble of both the 1946 and the 1958 Constitutions. This “bloc of constitutionality” – that is, the ensemble of norms of constitutional stature – established the foundation on which the Conseil has constructed its jurisprudence.’

Added to this new foundation were statutory revisions that expanded the pool of potential plaintiffs, culminating in the 2010 reform. The result? Today the majority of statutes undergo review by the council; according to the LeMonde report, that fact has instilled in legislators a new awareness of their constitutional duties. Claims the Conseil‘s President, Jean-Louis Debré:

‘”The Constitution henceforth belongs to the citizenry.'”

attConfLogoA new effort at multilateral regulation of firearms is set to begin Monday at U.N. headquarters in New York. The name for the 10-day diplomatic meeting – Final Conference – expresses hopes for a positive result. That was not the case in July 2012, when the resistance of the United States sidetracked negotiations. Under review will be a draft Arms Trade Treaty, Article 1 of which sets forth 2 goals:

► ‘[E]stablish the highest possible common standards for regulating or improving the regulation of the international trade in conventional arms’
► ‘[P]revent, combat and eradicate the illicit trade in conventional arms and their diversion to the illicit market or for unauthorized end use’

In so doing, treaty supporters hope to:

► ‘Contribute to international and regional peace, security and stability,’
► ‘Prevent the international trade in conventional arms from contributing to human suffering,’ and
► ‘Promote cooperation, transparency and responsibility of States Parties in the trade in conventional arms…’

The term “conventional arms” is defined in Article 2 to include many categories of weapons that all would agree ought to be subjected to close regulation: battle tanks and armored combat vehicles, large-caliber artillery, combat aircraft and attack helicopters, warships, missiles and missile launchers. It also includes one category of arms –  “small arms and light weapons” – which the U.N. Office on Disarmament Affairs blames for much suffering:

‘The majority of conflict deaths are caused by the use of small arms, and civilian populations bear the brunt of armed conflict more than ever. Also, small arms are the dominant tools of criminal violence. The rate of firearms-related homicides in post-conflict societies often outnumbers battlefield deaths. These weapons are also linked to the increasing number of killings of UN employees and peacekeepers …
‘Small arms facilitate a vast spectrum of human rights violations, including killing, maiming, rape and other forms of sexual violence, enforced disappearance, torture, and forced recruitment of children by armed groups. More human rights abuses are committed with small arms than with any other weapon. Furthermore, where the use of armed violence becomes a means for resolving grievances and conflicts, legal and peaceful dispute resolution suffers and the rule of law cannot be upheld.’

These contentions are echoed by many human rights organizations; an example is Amnesty International’s focus on how small arms harm girls and women.

The U.N. Office estimates that there are more than 875 million of these weapons, with as many as 8 million more being made each year. At stake is a global and globalized market. “More than 1,000 companies in about 100 countries are involved in some aspect of small arms production,” according to the Office, “with significant producers in around 30 countries.”

The inclusion of small arms and light weapons in the Arms Trade Treaty has raised some concerns in the United States,  notwithstanding the treaty’s emphasis on illegal trade and guarantees of noninterference in domestic matters. In the face of such concerns, a July 2012 White Paper by the American Bar Association maintained that the treaty would not impinge on rights guaranteed by the U.S. Constitution. A position statement by the U.S. Department of State – one that does not mention the Final Conference – may be found here.

Arizona State Law Professor Aaron Fellmeth wrote in October that National Rifle Association lobbying seemed to likely to impede U.S. ratification even if the treaty were to be adopted. Time will tell if post-Newtown sensibilities have changed that calculus.

US-Flag-and-Rainbow-Flag-e1330027721669-275x300Yesterday the Obama Administration urged the U.S. Supreme Court to invalidate § 3 of the 1996 Defense of Marriage Act, which defines “marriage” as the union of a man and a woman, and thus precludes extension of many benefits to spouses in same-sex marriages. The Brief for the United States on the Merits Question in United States v. Windsor argued that:

  1. The Court must examine the legality of discrimination based on sexual orientation at a heightened level; and
  2. Such heightened scrutiny exposes the statute as a violation of the equal protection obligations that the 5th Amendment places on the United States. (I examined that constitutional doctrine in a 2010 article.)

Acknowledging intervenor’s “appeal to this Court to allow the democratic process to run its course,” the government’s brief in Windsor concluded:

‘That approach would be very well taken in most circumstances. This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law. Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society. It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest. The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.’

With the filing of this brief and others, focus in the United States now shift to the Court, which will hear arguments in Windsor and another marriage-equality case, Hollingsworth v. Perry, at the end of March. (IntLawGrrls’ posts on these cases available here.) (photo credit)

In the meantime, worth noting are developments in countries the United States has long considered allies – countries with which the United States shares fundamental rights traditions:

Given recent U.S. decisions’ silence on foreign law, it will come as no surprise if these developments  prompt scant mention in the March arguments in Windsor and Perry. Nevertheless, these overseas threads will form part of the fabric of Justices’ deliberation.

elsieAs readers who’ve followed me from IntLawGrrls blog to this new site well know, I’ve devoted much time in recent years to honoring foremothers – women whose life stories are sources of inspiration today,  for women and men alike. Many foremothers were nominated by IntLawGrrls contributors; others came to the fore in our on-this-day or in-passing features; still others, in the research that others and I have done respecting women at Nuremberg and Tokyo post-World War II trials. Some women – for example, the Irish pirate Gráinne Ní Mháille, known to English speakers as Grace O’Malley – have been famous for centuries. Often as not, however, history had obscured these women. It’s been rewarding to bring their stories to light.

It’s a pleasure today to write of Elsie Parrish, a foremother of every working person.

A litigant before the U.S. Supreme Court, hers is a surname that’s found its way into many a law student’s outline. Yet it may not ring a bell, for the student is more likely to recall the landmark 1937 decision – West Coast Hotel Co. v. Parrish – by the first words in that caption. That’s too bad: as Dr. Helen J. Knowles, a Grinnell College political scientist, demonstrates in the article she’s just published in the Journal of Supreme Court History, Parrish’s personal story, and the emphasis put on it by local media, enrich any account of the case. And many accounts exist, given that Parrish’s case marked a watershed in U.S. history: by a 5-4 vote, the Court approved a New Deal-era minimum-wage law, reversing a long trend and putting a stop to President Franklin D. Roosevelt’s plan to “pack” the Court.

Starting it all, the article points out, was Elsie Parrish. In 1935, she was a 30-something, twice-married, once-divorced, mother and grandmother who made her living by cleaning rooms in an upscale hotel in Wenatchee, Washington. (photo credit) When she lost her job and did not receive back wages in line with the state’s minimum-wage-for-women law, she sued. Two years later, she won her case.

Knowles’ article tells of the fight to the Supreme Court and relates interviews Parrish gave with local papers; to one, Parrish said:

‘I am so glad, not only for myself, but for all the women of the state who have been working for just whatever they could get.’

Of interest too is what Parrish, by then a septuagenarian, had to say when America’s 2d feminist wave was at full crest. Interviewer Adela Rogers St. Johns quoted Parrish as follows in her book Some Are Born Great 187 (1972):

‘I was surprised when nobody paid much attention at the time, and none of the women running around and yelling about Lib and such have paid any since.’

In Parrish’s own words, again to Rogers St. John, here’s why she sued her former employers:

‘I had to do it. What they did wasn’t right.’

Acknowledging the ambivalence of some feminists, for the reason that the 1937 victory was cloaked in words of judicial paternalism, Knowles takes issue with Parrish’s claim that “nobody paid attention.” After all,  the case remains a landmark. Indeed, the decision in Parrish paved the way for legislation regulating the workplace for all working women – and men, too.  Knowles’ article, and other accounts in recent years, begin to restore, to the popular understanding of the case, the story of the woman who brought the suit.

Colon_PanamaA phrase plumbed in myriad opinions on the Alien Tort Statute now has surfaced in a criminal case. The phrase is “the law of nations,” a term favored in early American legal instruments. The question is this:

May the United States prosecute persons with no U.S. ties for trafficking in cocaine found on a ship in another country’s territorial waters, absent evidence that the ship either sailed the high seas or was destined for the United States?

No, answered the U.S. Court of Appeals for the 11th Circuit in United States v. Bellaizac-Hurtado (Nov. 6, 2012).

Defendants  had been charged under the Maritime Drug Law Enforcement Act, a 1986 statute that makes it a federal crime to “knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board … a … vessel subject to the jurisdiction of the United States.” The government sought to anchor jurisdiction in Article I, § 8[10] of the Constitution, by which “Congress shall have Power … To define and punish … Offences against the Law of Nations.”

Judge William H. Pryor’s opinion for the panel reasoned that “although the Supreme Court has never held that the ‘law of nations’ is synonymous with ‘customary international law,’ its decision in Sosa v. Alvarez-Machain (2004) confirms that it is.” The appellate panel proceeded to rule – reversing the court below – that Congress cannot rely on the Offences Clause except to proscribe conduct that violates customary international law. Whether viewed through the lens of the 18th or the 21st century, drug trafficking was deemed to fall below the substantive state-practice-plus-opinio-juris threshold of customary international law. Cited were sources as varied as William Blackstone and the Rome Statute of the International Criminal Court.

In a separate opinion that tracked Justice Stephen G. Breyer’s concurrence in Sosa, Judge Rosemary Barkett stressed what she termed the “jurisdictional component” of customary international law. The only principle of extraterritorial jurisdiction at play was universality, she noted; she then demonstrated that while offenses such as genocide, crimes against humanity, and war crimes are subject to universal criminal jurisdiction, drug trafficking is not. Thus Barkett concurred that the prosecution in Bellaizac-Hurtado was unconstitutional.

I found these opinions fascinating (not the least because I had grappled with the MDLEA while representing the defendant in United States v. Juda (9th Cir. 1995)). Indeed, the opinions invite an experts’ roundtable on this case of 1st impression, which seems destined for further review.

Among the many things worth further discussion:

► Whether “law of nations” in the Offences Clause ought to be construed to correspond with the 1st Judiciary Act. Drafted by many of the same men who framed the Constitution, § 9 of that 1789 Act stated: “district courts shall have … cognizance … of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

The panel in Bellaizac-Hurtado purported to follow the Supreme Court’s interpretation of that provision, known today as the Alien Tort Statute. But the panel’s method was curious. The panel analogized “law of nations” to “customary international law” alone, even as it acknowledged that the Court in Sosa never so ruled. A broader view, one that encompassed other forms of international law, such as widely ratified treaties, might have yielded a different result. (The panel determined that ratification – by the United States and 187 others among the world’s nearly 200 states – of the 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was not sufficient. It thus seemed to call into question other U.S. statutes implementing treaties that outlaw hostage-taking and other cross-border offenses. And panel’s view that because drugs still are trafficked, the wide acceptance of the U.N. treaty doesn’t constitute meaningful state practice is, well, odd.)

What is more, the panel failed to mention that the interpretation of “law of nations” in Sosa is especially demanding notwithstanding that the ATS sounds only in tort: the black-letter definition of ordinary customary international law requires only that state practice be “general and consistent,” while the Court in Sosa favored adjectives, such as “specific” and “universal,” that typically are reserved for higher-order, jus cogens norms. Application of the standard set in Sosa likely would have entrenched the panel’s construction.

► How substance and jurisdiction interrelate. The opinions show that links to the forum state matter. Some judges in the United States may find it difficult to determine the cognizability of an extraterritorial wrong without considering the effects, if any, on the United States. This was true not only in Bellaizac-Hurtado, but also in Sosa, and it deserves further study.

► Whether the Offences Clause was meant to receive an originalist reading. Judge Pryor’s opinion dwells on circa-1780s understandings of terms like “universal” and “law of nations.” Yet this may not be the only relevant time frame, as the opinion’s citations to articles by J. Andrew Kent, Charles D. Siegal, and Beth Stephens underline. Not only does international law prefer an evolutionary approach, but the Constitution’s framers also may have understood, as Siegal put it, “that the list of international law offenses would expand with time.” Meriting discussion is the proper navigation of these interpretive cross-currents.

► What consequences flow from the finding of unconstitutionality. Though the fact pattern seems not to have arisen before in an appellate court, it does seem capable of repetition given the United States’ penchant for overseas policing. Consider the panel’s recitation of facts, which begins:

‘During a routine patrol of Panamanian waters in 2010, the United States Coast Guard observed a wooden fishing vessel ….’

(credit for photo made in Panamanian territorial waters off Colón, the country’s 2d largest city) Should the holding in Bellaizac-Hurtado stand, U.S. prosecutions could not go forward even with the foreign state’s consent. Perhaps rationales for such “routine” deployments of U.S. agents also would be implicated.

This is a judicial voyage worth charting.