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Federalism is an essential feature of the Constitution's design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad--if not unlimited--federal power and reject certain longstanding federalism doctrines--such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks longforgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in North America became "Free and Independent States" following the Declaration of Independence--a status that entitled them to all of the rights and powers of every other sovereign state under the law of nations. Under that law, states could alienate their sovereign rights and powers in a binding legal instrument, but only if the instrument met certain requirements. As Vattel explained, and Hamilton echoed in The Federalist, all instruments used to alienate such rights and powers were subject to an important background rule designed to avoid misunderstandings and war: a legal instrument could alienate sovereign rights and powers only if it did so in clear and express terms or by unavoidable implication. Instruments that failed this test left sovereign rights and powers with the original holder. Hamilton explained that because the Constitution involved a "division of the sovereign power," this rule was "clearly admitted by the whole tenor of the instrument." Thus, as this Article and our prior work reveal, the proper question in federalism cases is not whether the Constitution affirmatively grants the States sovereign rights and powers (it does not), but whether it includes text sufficient to alienate the rights and powers they enjoyed when they became "Free and Independent States." From this perspective, the Court's leading federalism doctrines have a firm basis in the original meaning of the constitutional text--understood in its full legal and historical context. In defending this thesis, the Article responds to several scholars who have recently challenged our approach. Their critiques do not withstand scrutiny and are refuted by substantial evidence found not only in America's pre-constitutional founding documents and background law, but also in The Federalist Papers, the ratification debates, and significant early opinions of the Supreme Court. [ABSTRACT FROM AUTHOR]

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States' preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes seeking to override state sovereign immunity. In reviewing these acts, the Court established that Congress may abrogate immunity when exercising its powers to enforce the Fourteenth Amendment, but not when exercising its Article I powers. This distinction is consistent with the original public meaning of the constitutional text understood in historical context. Recently, in a surprising turnabout, the Court abandoned this established paradigm by finding that the States agreed to an implied "structural waiver" of their sovereign immunity in the "plan of the Convention" whenever such immunity would "thwart" or "frustrate" the purpose underlying a congressional power that is "complete in itself." The Court's new purposive approach to state sovereign immunity is incompatible with the Constitution because it gives courts open-ended discretion to alter the federal-state balance established by the instrument. As Alexander Hamilton explained, because the Constitution "aims only at a partial union or consolidation," "the whole tenor of the instrument" requires adherence to "the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor." Under this rule, the "plan of the Convention"--properly understood--divested the States of their sovereign rights only when it did so clearly and expressly or by unavoidable implication. By relying on a strongly purposive methodology to find implied structural waivers of state sovereign immunity, the Court's new approach disregards this fundamental rule and thus the Constitution itself. [ABSTRACT FROM AUTHOR]

ABSTRACT In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application ofU.S. law to hold that the Alien Tort Statute (ATS) did not encompass [...]

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution--often forgotten or overlooked-- renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the "States" as separate sovereigns with residual authority. Thus, constitutional interpretation necessarily entails ascertaining the extent to which the Constitution transferred sovereign rights from the States to the newly created federal government. The law of nations prescribed rules that governed both the formation and the interpretation of instruments used to transfer sovereign rights. Under these rules, legal instruments (regardless of their form) could transfer sovereign rights only if they did so in clear and express terms, and those terms were to be given their ordinary and customary meaning as of the time of adoption. Because the Constitution was an instrument used for this purpose, the Founders recognized that the applicable rules were "clearly admitted by the whole tenor of the instrument." Accordingly, these rules became an inextricable part of the legal content conveyed by the text of the Constitution. Not surprisingly, the Supreme Court used these rules to interpret the Constitution from the start. Recovering this constitutional law of interpretation has at least two important implications. First, by "admitting" the background rules of interpretation, the Constitution requires interpreters to employ some form of originalism in constitutional interpretation. Second, the nature of the Constitution and the rules governing its interpretation confirm that the Supreme Court has properly employed three doctrines to uphold the States' residual sovereignty--namely, sovereign immunity, the anticommandeering doctrine, and the equal sovereignty doctrine. [ABSTRACT FROM AUTHOR]

II. THE BREAKDOWN OF GENERAL AND LOCAL LAW In the decades following Swift, the evolving Swift doctrine became increasingly inconsistent with the constitutional structure and acts of Congress. As discussed [...]

INTRODUCTION In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law [...]

INTRODUCTION I. HOW STATE COURTS MAKE FEDERAL COMMON LAW A. Whether Federal Common Law Provides the Rule of Decision B. Whether the Content of Federal Common Law Is State or [...]

Courts and commentators have long struggled to reconcile prominent federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anticommandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally relied on the history, structure, and purpose of the Constitution rather than its text. Critics have charged that the doctrines lack adequate support in the Constitution's text and are the product of improper judicial activism. This Article suggests a way to reconcile federalism and textualism by looking to a surprising source--international law. The Constitution contains numerous references to "States," and the meaning of this term is central to a proper understanding of American federalism. Although it may not be possible to ascertain the original public meaning of constitutional terms with absolute certainty, "states" was a well-known term under the law of nations and carried with it a host of background assumptions. The Founding generation first used the term "States" in the Declaration of Independence to claim independence for the Colonies and declare that they were entitled to full sovereign rights under the law of nations. Both the Articles of Confederation and the Constitution continued to use this term to refer to these newly-independent States. The law of nations not only defined the rights of sovereign states but also provided rules governing how states could surrender these rights. Understood against this backdrop, the term "States" in the Constitution provides a precise textual basis for many of the Supreme Court's most significant federalism doctrines, and suggests that courts and commentators may be asking the wrong questions in assessing these doctrines. Under the law of nations, a "state" possessed full sovereignty unless and until it clearly and expressly surrendered some of its sovereign rights in a binding legal instrument. Thus, to determine the residual sovereignty of the "States" under the Constitution, the relevant question is not whether the constitutional text affirmatively grants them certain sovereign rights but whether the constitutional text clearly and expressly abrogates such rights. [ABSTRACT FROM AUTHOR]

The article addresses the reason behind the U.S. federal courts' application of the law of nations even though it is not the supreme law of the land, as well as the allocation of judicial powers to political branches of the federal government under the U.S. Constitution.

The article discusses the power of U.S. federal courts to recognize federal common law causes of action as of 2015, and it mentions America's Alien Tort Statute (ATS) which was enacted in 1789, as well as the U.S. Supreme Court's various interpretations of the ATS through the years. The country's Judiciary Act of 1789 and Process Act of 1789 are mentions, along with legal cases involving equity and admiralty claims and the U.S. federal judicial power case Erie Railroad Co. v. Tompkins.

COURTS and scholars continue to debate the status of customary international law in US. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution's allocation of powers to the federal political branches in Articles I and II or the effect of these powers on judicial precedent applying the law of nations throughout U.S. history. Several specific powers—such as the powers to send and receive ambassadors, declare war, issue letters of marque and reprisal, and make rules governing captures—can only be understood by reference to background principles of the law of nations. At the time of the Founding, it was reasonably assumed that US. courts would recognize the traditional rights of foreign sovereigns under the law of nations as a means of respecting the Constitution's allocation of specific foreign relations powers to the political branches. Considered in this light, the Supreme Court's decisions applying traditional principles derived from the law of nations throughout US. history have largely—if not exclusively—served to implement this allocation of powers. From this perspective, both the modern and the revisionist positions rest partly on erroneous premises. The modern position errs in claiming that the best way to read Supreme Court precedent applying the law of nations is that federal courts have independent Article III power to adopt such law as federal common law. Consistent with the original public meaning of the Constitution, this precedent is better read to apply certain traditional principles of the law of nations when necessary to uphold the political branches' recognition, war, reprisal, and capture powers under Articles I and II. The revisionist position overlooks the role of these powers by requiring the political branches or states to adopt traditional principles of the law of nations before courts may apply them. Historical understandings and judicial practice suggest that courts must apply traditional principles of the law of nations not only when the federal political branches or the states have adopted them, but also when Articles I and II require courts to do so. In such instances, the law of nations functions as constitutional law. [ABSTRACT FROM AUTHOR]

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the A TS provided "[t]hat the district courts. shall ... have cognizance ... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took a more restrictive approach. Seeking to implement the views of the First Congress, the Court determined that Congress wished to grant federal courts jurisdiction only over a narrow category of alien claims "corresponding to Blackstone's three primary [criminal] offenses [against the law of nations]: violation of safe conducts, infringement of the rights of ambassadors, and piracy." In this Article, we argue that neither the broader approach initially endorsed by lower federal courts nor the more restrictive approach subsequently adopted by the Supreme Court fully captures the original meaning and purpose of the A TS. in 1789, the United States was a weak nation seeking to avoid conflict with other nations. Every nation had a duty to redress certain violations of the law of nations committed by its citizens or subjects against other nations or their citizens—from the most serious offenses (such as those against ambassadors) to more commonplace offenses (such as violence against private foreign citizens). if a nation failed to redress such violations, then it became responsible and gave the other nation just cause for war. in the aftermath of the Revolutionary War, Congress could not rely upon states to redress injuries suffered by aliens (especially British subjects) at the hands of Americans. Accordingly, the First Congress enacted the ATS as one of several civil and criminal provisions designed to redress law of nations violations committed by United States citizens. The ATS authorized federal court jurisdiction over claims by foreign citizens against United States citizens for intentional torts to person or personal property. At the time, both the commission of—and the failure to redress—such "torts" violated "the law of nations." The statute thus employed these terms to create a self-executing means for the United States to avoid military reprisals for the misconduct of its citizens. Neither the ATS nor Article III, however, authorized federal court jurisdiction over tort claims between aliens, indeed, federal court adjudication of at least one subset of such claims — alien-alien claims for acts occurring in another nation's territory — would have contradicted the statute's purpose by putting the United States, at risk of foreign conflict. Despite suggestions that the true import of the ATS may never be recovered, the original meaning of the statute appears relatively clear in historical context: the A TS limited federal court jurisdiction to suits by aliens against United States citizens but broadly encompassed any intentional tort to an alien's person or personal property. [ABSTRACT FROM AUTHOR]

Information about several topics discussed at the Re-examining Customary International Law and the Federal Courts symposium on the status of customary international law at the federal courts is presented. Topics include the scope and effect of the Alien Tort Statute (ATS). The symposium featured several lecturers, including professors Curtis A. Bradley, Bradford R. Clark, and Ingrid Wuerth.

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the law of nations as an incident of political branch recognition of foreign nations, and in order to restrain the judiciary and the states from giving other nations just cause for war against the United States. Rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, federal courts have instead applied rules derived from the law of nations as a way to implement the political branches' Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide momentous questions of war and peace. This allocation of powers approach best explains the most important federal cases involving the law of nations across American history. This Article does not attempt to settle all questions of how customary international law interacts with the federal system. It does aspire, however, to recover largely forgotten historical and structural context crucial to any proper resolution of such questions. [ABSTRACT FROM AUTHOR]

The article discusses the book "Religion and the Constitution: Establishment and Fairness," by Kent Greenawalt. It looks into the approach of Greenawalt to constitutional problems related to the principles of nonestablishment and the analysis of the problems of particular establishment clause along these lines. It presents issues on judicial administration of nonestablishment values, the workability of government defenses for these values and the competency of the judiciary in discerning the values implicated in the establishment clause.

Scholars have long debated the separation of powers question of what ‘judicial power’ federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Foundingera English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes ‘dynamically’ or as ‘faithful agents’ of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often independent role in the American constitutional structure in interpreting federal statutes. In the late eighteenth and early nineteenth centuries, state courts, though they interpreted state statutes equitably in certain cases, interpreted federal statutes only in ways designed to implement, as far as possible, the directives of Congress. This Article describes the practice of state courts in interpreting federal statutes during the first few decades after ratification, explains why state judges may have felt constrained not to interpret federal statutes equitably, and suggests possible implications of this analysis for the question of how federal courts should interpret federal statutes. [ABSTRACT FROM AUTHOR]

Examines the ability of the United States Congress to regulate procedures by which state courts adjudicate claims arising under state law. Provisions of the Y2K Act; Constitutional problems raised by the federal regulation of state courts; Federal claims in state courts; Federal procedures in state courts.