April 18, 2022

The Problem with 'Gotcha' Textualism

[Cross-posted from The Hill]

By Alan Brownstein

During Judge Ketanji Brown Jackson’s confirmation hearing, Sen. Marsha Blackburn (R-Tenn.) seemed triumphant when she confronted the Supreme Court nominee with the fact that the word “abortion” is not mentioned in the Constitution’s text. You could almost imagine her thinking “Gotcha.” While Blackburn’s comment about abortion is true, it has to be placed in context. There are a lot of words reflecting long accepted constitutional doctrines that are not in the text.

The term “federalism” isn’t mentioned. Nor are the phrases “separation of powers” or “checks and balances.” Rights such as freedom of association or the right to marry or have children aren’t there either. Key judicial concepts such as standing, ripeness, and mootness can’t be found in the text. Nor can metaphors beloved by conservatives such as a “colorblind” constitution. As the federal reserve bank is raising interest rates to combat inflation, it is worth noting that the authority to create a national bank like the federal reserve isn’t listed as a congressional power.

If we want to carry the commitment to textualism to its logical, but absurd limit, the Marines and the Air Force aren’t recognized either — just the Army and the Navy have constitutional recognition.

The point isn’t, of course, that the text is irrelevant; rather, its utility in dispositively resolving constitutional questions can be uncertain and complicated. Plain meaning textualism often can’t do the job standing alone.

Let me suggest some key ideas to keep in mind in discussing how to think about the lack of plain language in the Constitution’s text on important issues.

First, some ideas require a lot of interpretative maneuvering that goes far beyond the literal text. For example, the First Amendment states that “Congress shall make no law … prohibiting the free exercise [of religion] or abridging the freedom of speech …” But doesn’t the Constitution also prohibit states and local governments from suppressing these fundamental rights? It does. The Supreme Court has interpreted the 14th Amendment to incorporate most of the Bill of Rights and to make those rights applicable to the states. However, the 14th Amendment doesn’t say anything explicitly about incorporation. It is difficult to ground the incorporation idea on textual language alone.

Or consider another example. Does the Constitution prohibit the federal government from discriminating on the basis of race? On its face, the Equal Protection Clause (the provision which prohibits racial discrimination) of the 14th Amendment only applies to state and local government. There is no provision explicitly prohibiting the federal government from denying racial groups the equal protection of the laws. Here again the Court has held that the federal government cannot engage in race discrimination. But it is a rocky road to get there by looking at the text alone. 

Second, both conservative and liberal jurists make constitutional arguments that lack explicit textual support. Consider the text of the 11th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Does anyone see any language in this text that prohibits federal courts from adjudicating cases brought by citizens against the government of the state in which they reside? (Focus on the word “another” in answering this question.) However, that is how conservative justices on the Court have interpreted this provision. The Court’s explanation for this deviation from the text is that the 11th Amendment was intended to protect a state’s sovereign immunity against suits by citizens of any state. That argument about historical intent is sharply disputed. More importantly, if we are focusing on the text, it is absolutely clear that neither the 11th Amendment, nor any other provision of the Constitution mentions “sovereign immunity.” Like abortion, it just isn’t there.

Third, expansive reading of the text to overcome the lack of literal support for a constitutional interpretation isn’t some new-fangled aberration of judicial activism. Consider this language from a Supreme Court opinion adjudicating the scope of congressional power: “[The constitution] by its nature, therefore, requires that only its great outlines should be marked, its important objects designated and the minor ingredients which compose those objects be deduced from the nature of the objects themselves … we must never forget that it is a constitution we are expounding … [This is] a constitution intended to endure for ages to come, and consequently to be adapted to the various crisis of human affairs.”

That language has a powerful historical pedigree: It’s from John Marshall’s opinion in McCulloch v. Maryland decided in 1819. In McCulloch, the Court upheld Congress’s power to incorporate a national bank notwithstanding that neither establishing a bank nor creating a corporation are listed among the enumerated powers of Congress.

Fourth and finally, the text of the Constitution contemplates non-enumerated powers and non-enumerated rights. Congress did not have an enumerated power to incorporate a bank. But Article I, Section 8, Clause 18 did provide it with the extended authority “To make all laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and all other powers vested in the national government. With regard to non-enumerated rights, the text of the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Freedom of speech is an enumerated right. Abortion is not. But the enumeration of freedom of speech and other rights should not be construed to deny or disparage other rights, not similarly enumerated — such as the right to have an abortion.

April 4, 2022

Con Law Episode 62: 'On the Other End of the Line'

[Cross-posted from What Roman Mars Can Learn About Con Law]

By Elizabeth Joh

Trump's improper dealing with Ukraine was what led to his first impeachment. While most of us were focused on the domestic political implications of Trump's actions, the country of Ukraine was put into jeopardy in a way that many didn't fully realize until the recent Russian invasion. Time to revisit the first Trump impeachment now that we know more about who was on the other end of that phone line and the imminent danger they were in. 

Listen to episode 62 of What Roman Mars Can Learn About Con Law.

April 1, 2022

Throwback Thursday: Revisiting Bradley and Goldsmith's 'Critique of the Modern Position'

[Cross-posted from Transnational Litigation Blog (TLB)]

By William S. Dodge

Twenty-five years ago, Professors Curtis Bradley and Jack Goldsmith shook the fields of transnational litigation, federal courts, and foreign relations law by questioning the conventional wisdom that customary international law has the status of federal common law. Their article Customary International Law as Federal Common Law: A Critique of the Modern Position, published in the Harvard Law Review, argued that customary international law could become part of federal law only if it were incorporated by treaty or federal legislation. Bradley and Goldsmith aimed their critique squarely at human rights litigation in federal courts under the Alien Tort Statute (ATS), setting off what Ingrid Wuerth has described as a “culture war” in the legal academy. In this post—the first of TLB’s “throwback Thursdays”—I revisit their critique, considering how it has fared in U.S. courts over the past quarter century.

The Critique

Bradley and Goldsmith challenged the provisions in the Restatement (Third) of Foreign Relations Law on the status of international law in the U.S. legal system. Section 111 of the Restatement (Third), published in 1987, took the position that customary international law was “law of the United States.” This meant that it was supreme over state law under Article VI of the Constitution (Section 111(1) & comment d), that it bound the President under Article II’s Take Care Clause (comment c), and that it fell within the judicial power of federal courts under Article III (Section 111(2) & comment e). Comment e went on to state that customary international law was also part of the “laws of the United States” for the purposes of 28 U.S.C. § 1331, the general federal question statute. It was this set of propositions that Bradley and Goldsmith called the “modern position” and argued was “a radical doctrine” (p. 838).

Their critique pointed out that before Erie Railroad v. Tompkins (1938), customary international law was considered part of general common law rather than federal common law. So, statements that customary international law is “the law of the land” (The Nereide (1815)) or “part of our law” (The Paquete Habana (1900)) do not necessarily support the proposition that customary international law is federal law. In 1938, Erie abolished general common law, raising the questions of whether and how customary international law fits into the post-Erie framework. To be sure, since Erie the Supreme Court has developed rules of federal common law to protect federal interests in some areas. In Banco Nacional de Cuba v. Sabbatino (1964), for example, the Supreme Court characterized the act of state doctrine as a rule of federal common law binding on the states. But Bradley and Goldsmith did not read Sabbatino to support treating customary international law as federal common law, both because Sabbatino made clear that the act of state doctrine was not itself a rule of customary international law and because the act of state doctrine operated to prevent the application of the customary international law on expropriation in that case. Finally, the authors argued that treating customary international law as federal common law was inconsistent with principles of separation of powers and federalism. This was particularly true, they maintained, for human rights law, which governs the ways nations treat their own citizens and the domestic effect of which the political branches had limited when ratifying various human rights treaties.

Concerns about human rights law were central to Bradley and Goldsmith’s critique. In Filartiga v. Pena-Irala (1980), the Second Circuit held that the ATS authorized federal courts to hear claims under customary international law for human rights violations abroad. Because both parties in Filartiga were aliens, Article III subject matter jurisdiction for such suits existed only if the claims arose under federal law. The Second Circuit held that Article III was satisfied because “the law of nations … has always been part of the federal common law.” If customary international law were not federal common law, Bradley and Goldsmith argued, such human rights claims “would not arise under ‘the Laws of the United States’ within the meaning of Article III, rendering Filartiga-type suits constitutionally suspect” (p. 848). More generally, they observed that “most of the [customary international law] that litigants and scholars wish to see applied under the rubric of the modern position, concerns not duties between nations, but rather duties that a nation owes to its citizens” (p. 867).

Human Rights Cases and Article III

How has Bradley and Goldsmith’s critique fared in U.S. courts over the past twenty-five years? In Sosa v. Alvarez-Machain(2004), the Supreme Court heard its first ATS case and recognized an implied cause of action under federal common law for violations of customary international law norms that were as widely accepted and specifically defined as the three violations of the law of nations that Congress had in mind when it enacted the ATS in 1789 (infringement of the rights of ambassadors, violations of safe-conducts, and piracy). Justice Scalia’s separate opinion cited Bradley and Goldsmith’s critique and would have adopted their position, holding that Erie’s “avulsive change” precluded the federal courts from making federal common law to enforce international human rights law. But that view won the votes of just three members of the Court.

Sosa seemed to show a willingness to use federal common law to enforce customary international law, at least when Congress had authorized federal courts to hear such cases. But the majority opinion also articulated reasons for “judicial caution” in recognizing a cause of action, including reasons based on Erie. In subsequent cases, caution prevailed, and the Supreme Court imposed more and more limits on the ATS cause of action. In Kiobel v. Royal Dutch Petroleum (2013), the Court applied the presumption against extraterritoriality to the ATS cause of action. In Jesner v. Arab Bank (2018), the Court held that the ATS cause of action did not apply to foreign corporations. And in Nestlé USA v. Doe (2021), the Court held that claims against U.S. corporations required conduct in the United States beyond general corporate decisionmaking. As I have noted elsewhere, these decisions seem to mark the end of Filartiga-type suits against foreign individuals and to leave open only a narrow window for ATS suits against U.S. corporations.

Although the Supreme Court has now effectively narrowed the ATS cause of action to claims against U.S. defendants for which diversity jurisdiction exists under Article III, the Court never embraced Bradley and Goldsmith’s position that claims under customary international law do not fall within Article III’s grant of federal question jurisdiction. Sosa rejected in a footnote the idea that Section 1331’s statutory grant of federal question jurisdiction applies to claims under customary international law, but it was conspicuously silent with respect to Article III. In Jesner, Justice Gorsuch’s concurring opinion relied on Bradley and Goldsmith’s critique to argue that customary international law claims do not arise under federal law for purposes of Article III, but only Justice Thomas expressed agreement. More significantly, in both Kiobel and Jesner, the Supreme Court decided ATS cases between aliens on the merits, something federal courts are not supposed to do in the absence of Article III subject matter jurisdiction. (Although Sosa also involved ATS claims between aliens, there was arguably an alternative basis for Article III jurisdiction.) Taken as a whole, the Supreme Court’s ATS cases seem at odds with Bradley and Goldsmith’s argument that claims under customary international law do not arise under federal law for purposes of Article III.

Foreign Official Immunity and Article VI

In some human rights cases litigated after Bradley and Goldsmith’s article, defendants have asserted foreign official immunity as a defense, raising other questions about the relationship between customary international law and federal common law. As Chimène Keitner and I have explained, customary international law provides absolute “head of state” immunity to foreign heads of state, heads of government, and foreign ministers during their terms in office. Under customary international law, lower-level officials and former officials are entitled to “conduct based” immunity only for acts taken in their official capacities. How such immunities should be incorporated into the U.S. legal system became a significant question after the Supreme Court held in Samantar v. Yousuf (2010) that foreign official immunity is governed by common law rather than by the Foreign Sovereign Immunities Act (which codifies the immunities of foreign states and state-owned entities). As Bradley has recently noted, everyone assumes that Samantar’s reference to “common law” means federal common law that is binding on states.

After Samantar, the executive branch has argued that the authority to develop the federal common law of foreign official immunity belongs to it, and that U.S. courts are bound to follow the principles it articulates. Others, including Wuerth, Keitner, and myself, have challenged that view, arguing that the executive branch has no independent lawmaking power and that the responsibility for developing federal common law in this area belongs to courts. But regardless of who makes the federal common law on foreign official immunity, this federal common law tracks quite closely the customary international law on foreign official immunity. The executive branch has expressly said that it looks to customary international law in articulating principles of foreign official immunity, and at least some federal courts have also expressly looked to international law.

Bradley resists this characterization. He agrees that foreign official immunity should be treated as federal common law, noting that “the common law of immunity implicates national foreign affairs interests that are comparable to those implicated by the act of state doctrine, which has long been treated as a rule of federal common law.” He argues, however, that Samantar made little mention of international law and that U.S. courts do not appear to apply customary international law directly. But whether U.S. courts apply the customary international law of foreign official immunity directly or by incorporation into federal common law, the fact remains that U.S. courts today are following the customary international law rules on foreign official immunity, and they are doing so through the mechanism of federal common law that binds the states under Article VI of the Constitution.

Customary International Law and Article II

The question whether customary international law binds the President under Article II’s Take Care Clause has also arisen in the context of foreign official immunity. The Executive Branch has taken the position that it has authority to deny immunity to a sitting head of state even though customary international law provides that such officials are absolutely immune during their time in office. To my knowledge, however, the Executive Branch has never tried to deny foreign official immunity—either head of state or conduct based—to a foreign official in circumstances where customary international law required it. In the twenty-five years since Bradley and Goldsmith published their critique, whether the President can violate customary international law has not been tested in court.

The Resilience of the Restatement (Third)’s Position

The other aspects of Bradley and Goldsmith’s position—that customary international law can become part of federal law only if it is incorporated through a statute or a treaty—have not been adopted by U.S. courts. Justice Scalia in Sosa and Justice Gorsuch in Jesner would have taken this position, but the majority did not do so in either case. To the contrary, the majority in Sosa recognized a cause of action under federal common law to enforce the customary international law of human rights, and the majority in Jesner decided a case between two aliens on the merits on the implicit assumption that claims under customary international law raised a federal question under Article III. In the context of foreign official immunity, U.S. courts today follow customary international law by incorporating its rules as federal common law, binding on the states, despite the absence of any statute or treaty authorizing them to do so. In short, the case for treating customary international law as federal common law seems stronger today than in 1997.


I have focused in this post on the question as Bradley and Goldsmith framed it—whether customary international law has the status of federal common law. But it is worth noting briefly the substantial historical evidence that the Framers understood customary international law to bind the President, to fall within the jurisdiction of the federal courts, and to bind the states long before there was any such thing as federal common law. Bradley and I have each analyzed the historical evidence with respect to Article III at length. I have gathered the evidence with respect to Article II and Article VI elsewhere. Today, it may be that the best way to give effect to the original understanding of customary international laws role in the U.S. legal system is by treating it as post-Erie federal common law. But it is not necessarily the only way.

Bradley and Goldsmith’s “Critique of the Modern Position” is a landmark in the scholarship on transnational litigation. Doctrinally, their views may not have carried the day in the way they hoped. But their article led to a wave of scholarship on the incorporation of customary international law in the U.S. legal system. Every court and scholar considering the application of customary international law in transnational cases today must still grapple with the arguments they put forth twenty-five years ago.