Kent on the Founding Era History of Congress's Power to Define and Punish Offenses Against the Law of Nations

J. Andrew Kent, Harvard, has posted a new article, forthcoming in the Texas Law Review, Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations. Here's the abstract:

Perhaps no Article I power of Congress is less understood than the power to “define and punish . . . Offences against the Law of Nations.” There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different manner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is the Clause a power to civilly or criminally regulate individuals when their conduct violates customary international law — as previous commentators have assumed — but it is also a power to punish states, both foreign and U.S. states, for violations of international law. This dual meaning of the Clause — operating on both individuals and states — results from the fact that the eighteenth-century law of nations was founded on an analogy between individuals and states. Relations between states in the international system were analogized to relations between individual people in the putative state of nature — made famous by Locke, Hobbes, Rousseau, and others—where mankind allegedly lived before entering civil society. In eighteenth-century thought, not only individuals but also states were capable of committing “offences against the law of nations.” And states, not just individuals, were liable to “punish” and be punished for such offenses. There are important implications of this dual reading of the Constitution's Law of Nations Clause for current debates about the constitutional status of international law and the Constitution's textual division of war and foreign policy powers between Congress and the President.