Professor David Moore’s most recent article, “Constitutional Discretion to Violate International Law,” has been accepted for publication in the Virginia Law Review. The article, which can be downloaded for review at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584179, addresses claims that the Constitution commits the United States to comply with international law. These claims often proceed from historical premises. They rely, among other things, on a conventional account of international law’s status during the period of Confederation. The conventional account emphasizes that state violations of international law during this period generated foreign affairs crises for the nation as a whole. In response, scholars claim, the Constitution obligated the new government to comply with international law.
Shifting the focus from the states, “Constitutional Discretion” reveals the national government’s relationship to international law under the Articles of Confederation. The national government deviated from both of the primary sources of international law: treaties and the law of nations. Tellingly, during the constitution making that followed Confederation, the Framers and ratifiers expressed concern for state, but not national, departures from international law. This previously unnoticed omission suggests that the many Founding-era statements in support of international law reflect a general commitment to international law that yielded to concrete national interests. The lack of concern for national violation of international law during Confederation likewise underscores another contribution of “Constitutional Discretion”—the observation that the Constitution adopted not a substantive commitment to international law, but structural provisions that tend toward international law compliance.
In light of the national government’s violation of international law during Confederation, the absence of concern for this violation during constitutional creation, and the Constitution’s ultimate adoption of structural protections rather than a substantive mandate of national compliance, claims of a constitutional commitment to international law compliance are overstated. While compliance with international law may be the best policy, the Confederation history of national noncompliance and the previously unrecognized fact that the Constitution adopts structural rather than substantive protections for international law compliance suggest that the Constitution preserves national discretion to violate international law.
Professor Moore’s prior publications have appeared in the Harvard, Columbia, and
Northwestern Law Reviews, among others. These publications can be found at