The Judicial Power—Treaties Clause

The judicial Power shall extend to all . . . Treaties made, or which shall be made, under the Authority [of the United States]. . . .

—Judge Carlos T. Bea & Mitchell K. Pallaki

Introduction

One theme unifies the Constitution’s provisions: It is a document of liberty oriented toward protecting individual rights. The drafters did not limit these protections to domestic matters: They extended them even to areas historically reserved for sovereigns applying the law of nations. One unique and innovative example is the Constitution’s grant of federal jurisdiction over cases brought to vindicate persons’ rights arising under treaties. Contrary to historical practice, this provision recognized that individuals, not just nations or groups of nations, can acquire and enforce rights based on treaties in federal courts.¹ The legal force of such treaties still depends in part on the exercise of sovereign authority by signatory nations. But the creation of federal jurisdiction over individual claims involving treaty rights underscores the Constitution’s novel approach: establishing a government that safeguards the rights of individuals.²

History Before 1787

Treaties have their origins in ancient times with examples stretching as far back as the third millennium B.C. One of the earliest treaties resolved boundary and water disputes between warring Sumerian city-states.³ Historically, treaty disputes were resolved not by lawsuits, but by sovereign action: Sovereigns either turned to war or enforced their treaties through the good faith of the people. As Hugo Grotius observed, such arrangements would “invoke the divine vengeance on their heads, if they violate[d] their engagements.”⁴

English law followed this historical tradition. It regarded treaties as creating rights and obligations that explicitly bound the signatory sovereign nations.⁵ Domestic common-law courts in Great Britain, such as the King’s Bench, accordingly lacked authority under the treaties themselves to adjudicate claims by individuals whose rights were affected by a given treaty. For a private individual to vindicate his personal rights under the treaty, Parliament had to enact laws recognizing such rights before courts could take jurisdiction over claims that raised such rights.⁶

The admiralty and prize courts, which were physically separate from the common-law courts, were different. They enforced a unique body of law based on the recognition of natural law, justice, and the laws of nations. For admiralty and prize courts, Parliament did not need to enact enabling legislation. Instead, the treaties were eventually recognized as vesting rights in individuals.⁷

Early courts in colonial America inherited this English tradition regarding the law of nations and the treatment of treaties as matters of sovereign engagements.⁸ However, because these colonial courts were subordinate to English courts, they had little occasion to apply these traditional rules of the law of nations.⁹

After 1776, the notions of sovereignty underlying the legal effect of treaties in English common law took on special relevance. The formal recognition of the United States as a sovereign vested it with the powers inherent in all civilized nations. The Continental Congress exercised that newly obtained sovereign authority to execute treaties with several countries.¹⁰ And the Articles of Confederation gave the Confederation Congress the “sole and exclusive right and power of . . . entering into treaties and alliances.”¹¹ But the Confederation Congress lacked direct enforcement authority; it could only encourage states and local legislatures to give effect to these agreements—efforts that were largely unsuccessful.

The most potent example followed the signing of the 1783 Treaty of Paris with Great Britain.¹² The Treaty of Paris ended the Revolutionary War and settled many of the disputes that had arisen between British loyalists and American revolutionaries. It required states to provide restitution to loyalists whose property was confiscated during the war. The states were also barred from imposing legal impediments to efforts by British creditors to collect money owed by American debtors.¹³

Yet the Revolutionary War–period hostility toward loyalists remained after the Treaty of Paris. Many states refused to comply with these treaty obligations.¹⁴ The Confederation Congress, which lacked the power to compel compliance, failed to persuade the states to protect the loyalists’ property rights as required.¹⁵ State courts similarly took cues from the state legislatures, which had declined to protect loyalists’ property rights. These courts also refused to enforce the treaty obligations.¹⁶ Further complicating matters, the Articles of Confederation did not establish any national courts to enforce treaties. The flaws of the system were palpable.

The Constitutional Convention

These problems came to a head at the Constitutional Convention. On June 19, 1787, William Paterson of New Jersey observed that under the Articles of Confederation, the states had a “tendency” to “violat[e] . . . the laws of nations & of Treaties.” Congress had received “complaints . . . from almost every nation with which treaties have been formed,” which led Paterson to remark that “[t]his cannot be the permanent disposition of foreign nations.”¹⁷

The Framers would address this problem partly through the federal judiciary. On August 27, John Rutledge of Virginia proposed that the judicial power should include the power to adjudicate claims arising under treaties. This provision would extend federal court jurisdiction to cases concerning “treaties made or which shall be made under the[] Authority” of the United States.¹⁸ The Treaty Clause expressly extended to treaties made before 1787, including the Treaty of Paris, to ensure that preexisting obligations were enforced. This language resembles the protections found in the Debt Assumption Clause, which ensured that debts “contracted . . . before the Adoption of this Constitution” would remain valid. (See Essay No. 153.) There was no noted discussion of the Treaty Clause, which was adopted unanimously.

The Ratification Debates

During the ratification debates, Anti-Federalists were generally opposed to federal authority over treaty rights. They feared that this federal power would restrict the ability of state legislatures and state courts to interpret and enforce such treaties. Centinel, for example, warned that “[t]he objects of jurisdiction [in Article III, Section 2], are so numerous, and the shades of distinction between civil causes are oftentimes so slight, that it is more than probable that the state judicatories would be wholly superceded.”¹⁹ Brutus similarly warned that the vesting of jurisdiction under Article III, Section 2, including jurisdiction over treaties, “w[ould] operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.”²⁰

The Federalists, by contrast, argued that this provision was necessary. In Federalist No. 3, John Jay defended this grant of jurisdiction, which he said would ensure that “treaties and articles of treaties . . . will always be expounded in one sense and executed in the same manner.”

Early Practice and Judicial Precedent

The Judiciary Act of 1789 granted the federal courts jurisdiction over cases concerning individual rights implicating treaty obligations, even if the party was an alien.²¹ This statute, now known as the Alien Tort Statute, also granted the U.S. Supreme Court jurisdiction over appeals dealing with state judgments adverse to the rights of parties who made claims under treaties.²² The Judiciary Act did not yet grant federal courts the full jurisdiction available under the Treaty Clause, but it enabled the Supreme Court to adjudicate important treaty-related cases.

The earliest conflicts implicated the 1783 Treaty of Paris. Virginia, for example, discharged debts owed to British subjects by treating them as enemy aliens who were incapable of contracting. Ware v. Hylton (1796) held that this state law was abrogated by the Treaty of Paris, which formed a part of the “Supreme Law of the Land.”²³ Justice James Iredell’s opinion provided an early articulation of the individual rights protections implicit in the Treaty Clause: Treaties could be read to vest rights in individuals that the judiciary could adjudicate.²⁴

The Court applied this principle in The Schooner Peggy (1801).²⁵ There, a United States ship seized a French ship, and the French owners invoked a U.S.–France treaty to restore their possession and ownership. Because the treaty had taken effect before the seizure, the Court directed the lower court to order that the ship be returned to the French owners. Though treaties could vest rights in individuals, Owings v. Norwood’s Lessee (1809) made clear that federal jurisdiction attached only if “a right grows out of, or is protected by, a treaty.”²⁶ Hence, the Treaty of Paris did not furnish the source of the petitioner’s property claim, because the property interest expired before the Treaty was signed.

Federal and State Court Jurisdiction

Over time, lower courts played a larger role in resolving claims involving individual treaty rights. Before 1875, only the Supreme Court adjudicated cases arising under treaties that came up on appeal from state courts.²⁷ But the Jurisdiction and Removal Act of 1875 granted lower federal courts jurisdiction over all cases “arising under . . . treaties made, or which shall be made, under the[] authority [of the United States].”²⁸ In substance, that grant of jurisdiction is the equivalent of the current federal question jurisdiction statute, which affords federal courts the full Article III jurisdiction under the Treaty Clause.²⁹ This jurisdiction, however, is not exclusive. Individuals or nations can also enforce their treaty rights in state courts.³⁰ Today, most treaty cases are brought in federal court.³¹

Termination of Treaty Rights

Even though the Constitution recognizes and protects individual treaty rights, sovereign nations must still exercise their authority to give those treaties legal force. This is generally clear when a treaty goes into effect, but the issue becomes more complicated when a treaty is no longer enforceable.

For example, war can suspend the treaty rights of individuals but not necessarily extinguish them. During the War of 1812, the treaty obligations of the United States and Britain were suspended, but the 1814 Treaty of Ghent, which ended hostilities, revived those nations’ responsibilities under the 1783 Treaty of Paris. For this reason, the Supreme Court ruled that rights to a pre-Revolution land grant by the British crown were protected by the Treaty of Paris despite the War of 1812.³²

If the United States repudiates its obligations under a treaty, the treaty and the rights it created lose legal force. For example, the Jay Treaty of 1794 granted Canadians the unrestrained right to immigrate to the United States, but the War of 1812 and border skirmishes had the effect of automatically voiding such rights.³³

Similarly, if a foreign sovereign disavows its treaty obligations, the United States can terminate the treaty—likely by presidential decree, although the caselaw on this point is unsettled.³⁴ But if the United States still complies with its treaty obligations, the treaty is not voided and remains legally enforceable.³⁵ In 1910, for example, Italy petitioned the United States to extradite an American citizen accused of murdering his wife in Italy. The Supreme Court concluded that the accused had properly been remanded to federal custody for extradition under an enforceable 1868 extradition treaty.³⁶ The Court reached this conclusion even though Italy had disavowed its treaty obligation to extradite Italian citizens because the United States “elected to waive any right to free itself from the obligation to deliver up its own citizens.”³⁷

Open Questions

• Can Article II executive agreements reached by the President vest individuals with rights in the same manner as self-executing treaties do? (See Essay No. 106.) Reid v. Covert (1957) acknowledged some distinction between executive agreements and treaties but explained that the difference did not matter in that case.³⁸
• Generally, states are immune from suits by citizens because of sovereign immunity, but what happens when a state violates a treaty? Can Congress abrogate state sovereign immunity and create federal causes of action that allow individuals to sue states in federal courts for violating rights arising under treaties? Justice Clarence Thomas has observed that “it is not likely that the Founders did, in fact, expect foreign creditor suits against States” under the 1783 Treaty of Paris.³⁹ Rather, as Professor Bradford R. Clark has written, “it is more likely that they expected creditors to sue their individual debtors and rely on the Treaty to defeat any state law defenses.”⁴⁰
• Under Article III, the federal courts have jurisdiction only over suits that have “a close historical or common-law analogue for the[] asserted injury.”⁴¹ How does this standing rule affect rights arising under treaties that deviate from those causes recognized at common law? Do these precedents constrain Congress’s ability to consummate treaties that create causes of action for individuals to vindicate their treaty rights?⁴²

1. Carlos Manuel Vu00e1zquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum. L. Rev. 1082, 1084–85 (1992). ↩︎
2. James Wilson, Of the Natural Rights of Individuals, in 2 Collected Works of James Wilson 1061 (Kermit L. Hall & Mark David Hall eds., 2007). ↩︎
3. Peter H. Sand, Environmental Dispute Resolution 4,500 Years Ago: The Case of Lagash v Umma, 30 Yearbook Int’l Envtl. L. 137 (2020). ↩︎
4. Grotius, The Rights of War and Peace 167 (A.C. Campbell trans., 1901). ↩︎
5. J.G. Collier, Is International Law Really Part of the Law of England?, 38 Int’l & Comp. L.Q. 924, 925–26 (1989). ↩︎
6. Harold H. Sprout, Theories as to the Applicability of International Law in the Federal Courts of the United States, 26 Am. J. Int’l L. 280, 282–85 (1932); Collier, supra at 925–28. ↩︎
7. Lindo v. Rodney & Another, (1781) 2 Doug. 613 (K.B.) (opinion of Lord Mansfield) (reported in Le Caux v. Eden, (1781) 99 E.R. 375, 385 n.10 (K.B.)). ↩︎
8. Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 32–33 (1952). ↩︎
9. Id. at 33. ↩︎
10. Treaties Between the United States of America and Foreign Nations: From the Declaration of the Independence of the United States to 1845, 8 Stat. 6–105 (Richard Peters ed., 1846). ↩︎
11. Articles of Confederation, art. IX, § 1. ↩︎
12. The Definitive Treaty of Peace Between the United States of America and His Britannic Majesty, Sept. 3, 1783, 8 Stat. 80 (Richard Peters ed., 1846). ↩︎
13. Treaty of Paris, arts. IV–V, 8 Stat. 82–83. ↩︎
14. James Westfall Thompson, Anti-Loyalist Legislation During the American Revolution, 3 Ill. L. Rev. 147, 168–71 (1908). ↩︎
15. Id.; A Letter from Mr. Hammond, Minister Plenipotentiary of Great Britain, to Mr. Jefferson, Secretary of State (Mar. 5, 1792), 1 Am. State Papers 193–200 (1833). ↩︎
16. Wythe Holt, The Origins of Alienage Jurisdiction, 14 Okla. City U. L. Rev. 547, 552, 561–62 (1989). ↩︎
17. 1 Farrand’s 316. ↩︎
18. 2 Farrand’s 423–24, 431. ↩︎
19. Storing 2.7.12. ↩︎
20. Id. at 2.9.133. ↩︎
21. Alien Tort Statute, Judiciary Act of 1789, § 9, 1 Stat. 73, 76 (codified at 28 U.S.C. § 1350). ↩︎
22. Id. at § 25, 1 Stat. 85. ↩︎
23. 3 U.S. (3 Dall.) 199 (1796); accord Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 355–62 (1816). ↩︎
24. 3 U.S. (3 Dall.) at 274–77 (opinion of Iredell, J.). ↩︎
25. 5 U.S. (1 Cranch) 103, 108–10 (1801). ↩︎
26. 9 U.S. (5 Cranch) 344, 348 (1809). ↩︎
27. William M. Wiecek, The Reconstruction of Federal Judicial Power, 1863–1875, 13 Am. J. Legal Hist. 333, 341–42, 348–49 (1969). ↩︎
28. Jurisdiction and Removal Act of 1875, § 1, ch. 137, 18 Stat. 470 (1875); Judicial Code of 1911, §§ 24, 289, Pub. L. No. 61–475, 36 Stat. 1087, 1091, 1167 (1911). ↩︎
29. 28 U.S.C. § 1331. ↩︎
30. Scandinavian Airlines Sys., Inc. v. L.A. Cnty., 363 P.2d 25 (Ca. 1961); In re Zalewski’s Estate, 55 N.E.2d 184 (N.Y. 1944); San Lorenzo Title & Improvement Co. v. City Mortg. Co., 73 S.W.2d 513 (Tex. 1934); King of Prussia v. Kuepper’s Adm’r, 22 Mo. 550 (1856). ↩︎
31. Republic of Paraguay v. Allen, 949 F. Supp. 1269 (E.D. Va. 1996); Principality of Monaco v. Mississippi, 292 U.S. 313, 323 n.2 (1934) (citing The Sapphire, 78 U.S. (11 Wall.) 164, 167–68 (1870)). ↩︎
32. Soc’y for the Propagation of the Gospel in Foreign Parts v. New Haven, 21 U.S. (8 Wheat.) 464, 493–94 (1823). ↩︎
33. Karnuth v. United States, 279 U.S. 231, 239–41 (1929). ↩︎
34. Terlinden v. Ames, 184 U.S. 270, 289 (1902); Zivotofsky v. Kerry, 576 U.S. 1, 13–14 (2015); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 324 n.2 (1936); Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1126 (1985). ↩︎
35. Terlinden, 184 U.S. at 286–87, 289–90. ↩︎
36. Charlton v. Kelly, 229 U.S. 447, 469–73 (1913). ↩︎
37. Id. at 470–71, 476. ↩︎
38. 354 U.S. 1, 17 n.33 (1957). ↩︎
39. Torres v. Tex. Dep’t of Pub. Safety, 597 U.S. 580, 615 (2022) (Thomas, J., dissenting). ↩︎
40. Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817, 1910 (2010). ↩︎
41. TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021); Spokeo v. Robins, 578 U.S. 330, 341 (2016). ↩︎
42. Farrell v. Blinken, 4 F.4th 124, 133 (D.C. Cir. 2021). ↩︎