I. Constitution and Empire 4
Somerset v. Stewart (1772); King’s Bench; Lord Mansfield 4
Dred Scott v. Sandford (1856) 4
Downes v. Bidwell (1901) (one of the Insular cases) 6
Johnson v. Eisentrager (1950) 8
Ahrens v. Clark (1948) 10
Reid v. Covert (1957) 11
United States v. Verdugo-Urquidez (1990) 13
Rasul v. Bush (2004) 14
Boumediene v. Bush (2008) 17
II. International Law? 23
Schooner Exchange v. McFaddon & Others (1812) 23
The Antelope (1825) 24
Vattel, The Law of Nations 25
Joseph Story, “Law of Nations” 26
U.S. v. Schooner Peggy (1801) 27
Brown v. United States (1801) 27
Foster v. Nielson (1829) 29
United States v. Percherman (1829) : 30
The Paquete Habana (1898) 31
Filartiga v. Pena-Irala (1980) 32
Tel Oren v. Libyan Arab Republic (1984) 34
Kadic v. Karadzic (1995) 38
Louis Henkin, International Law as Law in the United States 39
Restatement of Foreign Relations Law, Sec. 111. International Law and Agreements as Law of the United States 41
Restatement of Foreign Relations Law, Sec. 115. Inconsistency Between International Law or Agreement and Domestic Law: Law of the United States 42
Curtis Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position 42
Sosa v. Alvarez-Machain (2004) 45
III. Torture: An Interlude 48
Geneva Conventions, Common Article III 48
Bybee Memo; Re. Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A 50
Sec. 1003. Note: 42 USC 2000dd. Prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government 61
Sec. 1004 42 USC 2000dd-1. Protection of United States Government personnel engaged in authorized interrogations 62
Alberto Gonzales, Senate Judiciary Committee Confirmation Hearing 63
Michael Mukasey, Senate Confirmation Hearing 64
PCAT v. The State of Israel and The General Security Service 64
IV. War & Exception 65
The Lieber Code: Excepts 65
Abraham Lincoln, Letter to Albert Hodges 68
Abraham Lincoln, Message to Congress in Special Session 69
Abraham Lincoln, Letter to Erastus Corning and Others 71
Ex parte Merryman (1861) 73
Ex Parte Milligan (1866) 74
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 76
Korematsu v. United States (1944) 77
Ex Parte Endo (1944) 80
Ex Parte Quirin (1942) 82
In Re Yamashita (1946) (jus post bellum) 84
Hirota v. MacArthur (1949) 86
Hamdi v. Rumsfeld (2004) 87
Hamdan v. Rumsfeld (2006) 92
Padilla v. Hanft (2005) 96
V. Who Obeys What? The States and International Law 97
Missouri v. Holland (1920) 97
Reid v. Covert (1957) 98
VCCR, Article 36 Communication and Contact with Nationals of the Sending States 98
LaGrand Case (2001) 99
The Avena Case (2004) 101
President Bush, Memorandum for the Attorney General—Compliance with the Decisions of the ICJ in Avena 102
Sanchez-Llamas v. Oregon (2006) 103
Medellin v. Texas (2008) 107
VI. The Constitution in the International Markets 111
Charles A. Beard, An Economic Interpretation of the Constitution of the United States 112
Robert McGuire, To Form A More Perfect Union: A New Economic Interpretation of the US Constitution 112
McCulloch v. Maryland (1819) 113
Hepburn v. Griswold (1870) 114
Know v. Lee & Parker v. Davis (1871) 115
Norman v. Baltimore & O.R (1935) 116
Nottz v. United States (1935) 118
Perry v. United States (1935) 118
VII. Rights and International Norms 119
Loewen Group v. United States (2003) 119
Roper v. Simmons (2005) 122
Lawrence v. Texas (2003) 122
Breyer and Scalia 123
Ruth Bader Ginsburg, Looking Beyond our Borders: The Value of a Comparative Perspective in Constitutional Adjudication 123
*Red Underline—Reading and Lecture
** Red—Lecture
*** Black—Reading
I. Constitution and Empire
Somerset v. Stewart (1772); King’s Bench; Lord Mansfield
Facts: Somersett kidnapped from Africa and made a slave, and sold to Stewart. Had not been manumitted since. He was brought to Enlannd to attend and serve. He fled and was recaptured and given to Captain Knowles to be held until he returned to England. Somersett filed for a writ of habeas corpus; the writ from the king to the jailer to produce the body or show cause.
Holding: “So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on nay reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England, therefore the black must be discharged.
Notes
- Argument
o 1. Slavery only if there is positive law
o 2. No positive law of slavery in England
o 3. Slave free in England
- Point is that common law is embodied reason; Cooke: Common law is artificial reason—it looks to precedent and reason
- Mansfield limits it to positive law because that would have been activism on his part; leaves the question open for the colonies. Because within an imperial construct, it is possible that laws will vary
- Why can’t you have slavery in common law/custom?
o Distinctively immoral
o There are no good reasons for common law justification
o Morality is one of those reasons
Dred Scott v. Sandford (1856)
Facts: Dr. Emerson took slave Dred Scott to Upper Louisiana (where slavery was prohibited) in 1836. Then in 1838, Dr. Emerson took the Sandford and his wife to the state of Missouri and tried to sell him to the defendant Sandford. Dred Scott claims that he was free because of his stay in the Louisiana territory.
Issue: (1) Does the court have jurisdiction--can and African American become a citizen under the United States Constitution. (2) Was the defendant and his family entitled to bring suit under the privileges and immunities clause because of his stay in Louisiana. Is the Missouri Compromise (which says that North of 36’30 there will be no slavery) constitutional?
Holding: (1) African-Americans were not intended to be included, under the word (they are not part of “we the people”) “citizens in the Constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. They were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those the Government might choose to grant them. Every state has the right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights, but this character is confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States.
The legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, not their descendant, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.
- Article III made it so that Dred Scott needed to be a citizen; federal courts are courts of limited jurisdiction because they are part of limited government
- Court has to undercut implicit allowance of naturalization; so Taney postulates there are no political African communities
- But what about African-Americans living in United States political communities?
o Those poltical communities cannot confer US citizenship
- Why did the court reach the first question? The reach that a holding of United States citizenship could have for state citizenship made it so
o Symbolic effect of decision: makes the states the relevant body for determining citizenship and excluding African-Americans because they are not a member of a polity
§ The very capacity to become a citizen depends on a membership in a polity; sustain status of African-American because they are not capable of being citizens
- We the People 1776 va 1786
o Question of when people became U.S. citizens
§ Implication for Dred Scott: anyone who was a citizen in 1776, could not be made uncitizen by Constitution
§
(2) Constitutional provision which confers on Congress the power ‘to dispose of an make all needful rules and regulations respecting the territory or other property belonging to the United States” has no bearing on the present controversy because it is confined to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more. The powers of the Government and the rights and privileges of the citizen are regulated an plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those created it. The territory being a part of the United States, the Government and citizen both enter it under the authority of the Constitution with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property what that instrument confers, nor lawfully deny any right which it has reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description or property owned by a citizen, no tribunal, acting under the authority of the United States, has a right to draw such a distinction, or deny to it the benefit of the provision and guarantees which have been provided for the protection of the private property against Government encroachments.
- Common consensus is that Missouri Compromise part was intended to hold together the union
- Legal or doctrinal arguments
o Start with constitutional provision
o Two question in sequence: 1) authority to act, 2) was their rights violation
- Court draws critical distinction between territories; major point is that the only way to admit territories is to admit them as states
o Louisiana was required to become a state
o Congress had no authority under the Articles to take the territory, but did under natural law power as sovereign—poltical communities
- Natural law: must be the same always and everywhere
- Constitution only gives enumerated powers, therefore only natural law that is mentioned applies; constitutional regime does not exercise natural law
o Sovereignty paradox: natural right to form political community as sovereign, and yet of the moment constitutional formation natural law powers were limited
- Argument why Congress does not have authority: Only way to get territory is for them to become states, and for Congress to act within Congress’ discretion
o Fundamental anticolonial and racists opinion
o Within Congress has no authority to act+ no colonies, just territories with same rights as states
Downes v. Bidwell (1901) (one of the Insular cases)
Facts: In 1888, the United States acquired Puerto Rico. Merchandise brought into the port of New York for Puerto Rico after the passage of the Foraker Act. In De Lima v. Bidwell, the court held that, upon the ratification of the treaty of peace with Spain, Puerto Rico ceased to be a foreign country, and became a territory of the United States, and that duties were no longer collectible upon merchandise brought from that island. Foraker Act passed under Section 9.
Issue: Did Puerto Rico become part of the United States within the meaning of Article 1 Section 8, which declares that “all duties, imposts, and excises shall be uniform throughout the United States”? (If Puerto Rico did become part of the United States, the Foraker act imposing duties upon its products is unconstitutional, not only by reason of a violation of the uniformity clause, but because by Section 9 “vessels bound to or from one state’ cannot be obliged to enter, clear, or pay duties in another.” Whether tariff applying on imports from other countries applied to Puerto Rico’s? Does constitution follow the flag?
Holding: It is sufficient to observe in relation to these three fundamental instruments, that it can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, as union of states, to be governed solely be representative of the states. The Constitution deals with states, their people, and their representatives. Notwithstanding these provisions for the incorporation of territories into the Union, Congress not only in organizing the territory of Louisiana by act of March 26, 1804, but all other territories carved out of this vast inheritance, has assumed that the Constitution did not extend to them of its own force, and has in each case made special provision, either that their legislatures shall pass no law inconsistent with the Constitution of the United States, or that the Constitution or law of the United States shall be the supreme law of such territories.
Treaty making power allows Congress to acquire new territories without the immediate promise of making them states. Jefferson originally thought that he needed constitutional provisions to acquire Louisiana. Maybe: 1) sovereign power, can acquire its own territory (inherent right), 2) necessity gave them power—historical necessity (reason of states). The argument that the Court uses to show that it is necessity. We need to be an empire (p.20) (borrowed from Marshall) and if we have to admit these savages as states the consequences will be extremely serious. Therefore, they have to be governed by another law. (It is necessary, so constitution says it). Court responds Harlan’s response that this is a government of limited powers: the framers didn’t think about this problem, so we have to answer it as they would had they realized by manifest necessity.
It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. Eliminating, then, all expressions unnecessary to the disposition of the particular case, and gleaning therefore the exact point decide in each, the following proposition may be considered established: 2) That territories are not states within the meaning of Rev. Stat Section 709, permitting writs of error from this court in cases where the validity of a state statute drawn in question; 4) That the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish; 6) That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact law inconsistent therewith.