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Unalienable Rights Foundation - "offenses against the laws of nations"
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 "offenses against the laws of nations"

Organic Documents

The meaning of "offenses against the laws of nations"
by Jon Roland, Constitution Society

Art. I Sec. 8 Cl. 10 of the Constitution for the United States delegates the
power to Congress to "define and punish ... Offenses against the Laws of
Nations". It is important to understand what is and is not included in the
term of art "laws of nations", and not confuse it with "international law".
They are not the same thing. The phrase "laws of nations" is a direct
translation of the Latin "jus gentium", which means the underlying
principles of right and justice among nations, and during the founding era
was not considered the same as the "laws", that is, the body of treaties and
conventions, between nations, the "jus inter gentes", which is
"international law". The distinction goes back to Roman Law.

Briefly, the Laws of Nations at the point of ratification in 1789 included
the following general elements, and prosecution of those who might violate
them:

(1) No attacks on foreign nations, their citizens, or shipping, without
either a declaration of war or letters of marque and reprisal.

(2) Honoring of the flag of truce, peace treaties, and boundary treaties.

(3) Protection of wrecked ships, their passengers and crew, and their cargo,
from depredation by those who might find them.

(4) Prosecution of piracy by whomever might be able to capture the pirates,
even if those making the capture or their nations had not been victims.

(5) Care and decent treatment of prisoners of war.

(6) Protection of foreign embassies, ambassadors, and diplomats, and of
foreign ships and their passengers, crew, and cargo while in domestic waters
or in port.

(7) Honoring of extradition treaties for criminals who committed crimes in a
nation with whom one has such a treaty who escape to one's territory or are
found on the high seas.

And, although it was not yet firmly established with all nations in 1789,

(8) Prohibition of enslavement of foreign nationals and international
trading in slaves.

No subsequent additions to the "laws of nations" could have the effect of
expanding the delegated powers under the Constitution. Ratification froze
those powers at the moment of ratification. Only the amendment procedures
provided under the Constitution can add to, subtract from, or modify them.

Some confusion on whether a treaty could confer additional powers on
government was introduced by the opinion in Missouri v. Holland, 252 U.S.
416 (1920), which held that a migratory bird treaty with Canada enabled the
national government to regulate the protection and harvesting of migratory
birds within the United States, even though without the treaty the national
government would not have the power to do so. This contradicts the ancient
Law of Agency whereunder an agent, in this case federal officials, may not
acquire new powers from the exercise of a power, but only by delegation from
the principal. However, the opinion may also be read to say that it is only
state governments that are required by a treaty to exercise their already
delegated powers, and that federal courts have appellate jurisdiction over
cases of state compliance with federal treaties.

The case law was further muddied by the opinion in the case of United States
v. Belmont, 301 U.S. 324 (1937), which held that executive agreements are
entitled to the same constitutional authority as treaties in the relation
between the states and the federal government, and that the supremacy clause
makes both treaties and executive agreements supreme over state power as to
the subjects covered by them. This decision has given rise to alarm by civil
libertarians, because there is no congressional approval required for
executive agreements, much less the two-thirds vote of the Senate required
for treaties, or the ratification by three-fourths of the states required
for constitutional amendments. By this reasoning, the president acting in
collusion with any foreign government could effectively eliminate states
except as voting districts.

Based on these precedents, then Secretary of State John Foster Dulles
promulgated what some call the "Dulles Doctrine" that treaties, executive
agreements, and votes in the United Nations, could effectively amend the
U.S. Constitution and expand the powers of the federal government without
limit.

However, this misunderstanding about whether the constitution could be
amended through the making of treaties was denied in the case of Reid v.
Covert, 354 U.S. 1 (1957):

"This court has regularly and uniformly recognized the supremacy of the
constitution over a treaty" [Reid, at p. 17].

"... when a statute which is subsequent in time is inconsistent with a
treaty, the statute to the extent of conflict, renders the treaty null."
[Reid, supra, citing Geofroy v. Riggs, 133 U.S. 238, at p. 267]

"No agreement with a foreign nation (no exec. orders, no Pres. directives,
no "accords" etc.) can confer power on Congress or any other branch of
government, which is free from the restraints of the constitution" [Reid,
supra].

Despite the decision in Reid v. Covert, however, the dominant faction in the
federal government continues to maintain the Dulles Doctrine, arguing that
Reid only applied to infringements on rights recognized in the Constitution,
and did not prevent expansion of federal powers through treaty, even though
one of the fundamental rights recognized in the Tenth Amendment was the
right not to have government exercise powers not delegated to it.

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Associated Topics

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