JB

Will Baude, who runs Baudesblog, asks how far back the practice of federal courts citing to international authorities runs. Is it just a new idea beginning with Atkins v. Virginia and Lawrence v. Texas, or does it go further back?

The answer is that the practice of American courts, and in particular the Supreme Court, citing to "the law of nations" goes back to the very beginnings of the country's history. If you think about it, you can see why this would have to be the case. When the country was first founded, it had very little law of its own, and, moreover, it was also a naval power continually engaged in international commerce. Go to Lexis and/or Westlaw and plug in "law of nations" and date pre 1900 in the Supreme Court library. You'll get scores (actually hundreds) of Supreme Court decisions referring to international law. Following World War II there was also an increasing number of international organizations, and thus more international law, which the Court also refers to.

Here, for example, is an early discussion of the law of nations by Chief Justice John Marshall in 30 Hogsheads of Sugar v. Boyle, 13 U.S. (9 Cranch.) 191, 198 (1815):

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a s[e]ries of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.

Thus, for those who think that citation to international sources is somehow inconsistent with the genius of the American Constitution, the hallowed practices of the founding generation, or the authority of the American Constitution and our country's devotion to the Rule of Law, I say, take it up with John Marshall.

And for those of you who are interested in further legal niceties, there is currently an interesting debate in the legal academy about the extent to which customary international law should be recognized as part of federal common law, in which two very fine scholars, Curtis Bradley and Jack Goldsmith have criticized the standard view that customary international law forms part of federal law. See Curtis A. Bradley and Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). I am concerned here only with the more narrow question of whether the Supreme Court may look to international law and to the decisions of foreign courts as persuasive authority, rather than as part of federal law. Even if Bradley and Goldsmith are correct that some elements of customary international law should not be regarded as part of federal common law, the practices by federal courts and the Supreme Court for well over two centuries of looking to foreign decisions, international law, and treatises on international law as persuasive authority would not be affected.