Michael Stokes Paulsen on International Law
Via Opinio Juris, I’ve just learned of law professor Michael Stokes Paulsen’s recent Yale Law Journal article entitled “The Constitutional Power to Interpret International Law” (accessible here). Paulsen is one of my favorite constitutional scholars, and my initial quick review of his article (which has focused most heavily on his Part I) indicates that it embodies his usual clarity, logical rigor, and willingness to reject unsound conventional wisdom. One excerpt:
Carl von Clausewitz famously referred to the “fog” of war as a metaphor for the inability to think clearly and sensibly in the midst of battle once the forces of war have been unleashed. “Fog” is likewise a useful image for the phenomenon of unclear thinking about international law in contemporary legal and political discourse. Once the idea of international law has been unleashed, its rhetorical salience frequently seems to overtake careful thought.
What precisely is the force of international law as a matter of U.S. law, under the U.S. Constitution? How does it affect—does it affect—the U.S. constitutional law of war and foreign affairs powers? My contention is that international law is not binding law on the United States, and cannot be binding law except to the extent provided in the U.S. Constitution. That extent is very limited and subject to several important constitutional overrides—empowerments or restrictions that nearly always permit international law requirements to be superseded by contrary enactments or actions of U.S. governmental actors.
The result is that international law is primarily a political constraint on the exercise of U.S. power, not a true legal constraint; it is chiefly a policy consideration of international relations—of international politics. International law may be quite relevant in that sense. But it is largely irrelevant as a matter of U.S. law. While the legal regime of international law may consider international law supreme over the law of every nation, the U.S. Constitution does not.