Full Description
The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted - namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.
Contents
Acknowledgments
Introduction
Part I -- The Traditional Law of Nations and the
Constitution
1. The Law of Nations and the Constitution
2. The Law Merchant and the Constitution
3. The Law of State-State Relations and the Constitution
4. The Law of State-State Relations in Federal Courts
5. The Law Maritime and the Constitution
Part II -- Modern Customary International Law and the Constitution
6. Modern Customary International Law
7. The Inadequacy of Existing Theories of Customary
International Law and the Constitution
Part III -- Enforcement of Customary International Law in U.S. Courts
8. Judicial Enforcement of Customary International Law
Against Foreign Nations
9. Judicial Enforcement of Customary International Law
Against the United States
10. Judicial Enforcement of Customary International Law
Against U.S. States
Conclusion
Index
