The Law of Nations and the United States Constitution PDF
Preview The Law of Nations and the United States Constitution
1 i The Law of Nations and the United States Constitution ii iii The Law of Nations and the United States Constitution z ANTHONY J. BELLIA JR. BRADFORD R. CLARK 1 The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press. iv 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Bellia, Anthony J. Jr., author. | Clark, Bradford R., author. Title: The law of nations and the United States Constitution / Anthony J. Bellia Jr., Bradford R. Clark. Description: New York : Oxford University Press, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2016039725 | ISBN 9780199841257 ((hardback) : alk. paper) Subjects: LCSH: Constitutional law— United States. | Customary law, International. Classification: LCC KF4550 .B373 2017 | DDC 342.73— dc23 LC record available at https:// lccn.loc.gov/ 2016039725 1 3 5 7 9 8 6 4 2 Printed by Edwards Brothers Malloy, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. v A.J. Bellia dedicates this book to his parents, Anthony and Maureen Bellia, and to Tricia, Kate, and Molly. Bradford R. Clark dedicates this book to his parents, Dr. John R. Clark and Dr. Anna Lydia Motto, exemplary scholars, teachers, and mentors. vi vii Contents Acknowledgments ix Introduction xi PART ONE: The Traditional Law of Nations and the Constitution 1. The Law of Nations and the Constitution 3 2. The Law Merchant and the Constitution 19 3. The Law of State- State Relations and the Constitution 41 4. The Law of State-S tate Relations in Federal Courts 73 5. The Law Maritime and the Constitution 113 PART TWO: Modern Customary International Law and the Constitution 6. Modern Customary International Law 139 7. The Inadequacy of Existing Theories of Customary International Law and the Constitution 149 viii viii Contents PART THREE: Enforcement of Customary International Law in U.S. Courts 8. Judicial Enforcement of Customary International Law Against Foreign Nations 193 9. Judicial Enforcement of Customary International Law Against the United States 213 10. Judicial Enforcement of Customary International Law Against U.S. States 245 Conclusion 269 Index 273 ix Acknowledgments we owe a debt of gratitude to the many colleagues and students who generously contributed their time and resources to this project. Before writing this book, we wrote several articles that provided the foundation upon which the book is built. These projects would not have been possible without generous support from our respective institutions and the many comments, suggestions, and questions that we received from colleagues along the way. At Notre Dame, we received generous support from Deans Nell Newton and Patty O’Hara. At George Washington, we received generous support from Deans Paul Schiff Berman and Blake Morant. We thank them for the resources that made this book possible, and for their ongoing encouragement. We are also grateful to the many colleagues and friends who provided comments and suggestions on the chapters of this book and/o r related articles that preceded them, including Amy Barrett, Tricia Bellia, Paul Berman, Curt Bradley, Paolo Carozza, Doug Cassel, Anthony Colangelo, Michael Collins, Barry Cushman, Anthony D’Amato, Bill Dodge, Sam Estreicher, Jean Galbraith, Rick Garnett, Jack Goldsmith, David Golove, Philip Hamburger, John Harrison, Rick Hills, Duncan Hollis, Dan Hulsebosch, Bill Kelley, Dan Kelly, Randy Kozel, James Lee, Tom Lee, Renée Lerner, John Manning, Maeva Marcus, Mark McKenna, Jon Molot, Henry Monaghan, David Moore, Trevor Morrison, Sean Murphy, John Nagle, Jeff Pojanowski, Mike Ramsey, Jon Siegel, Linda Silberman, Ralph Steinhardt, Paul Stephan, Ed Swaine, Jay Tidmarsh, Amanda Tyler, Carlos Vázquez, Julian Velasco, Ingrid Wuerth, and Ernie Young. We are sure this list is incomplete, but our gratitude to those we have neglected to mention is no less. We are especially grateful to Tricia Bellia, Barry Cushman, Philip Hamburger, John Manning, Maeva Marcus, Mike Ramsey, and Carlos
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