Book Description

The Tenth Clause of Article I, Section 8 of the Constitution grants to Congress the power “[t]o define and punish . . . Offenses against the Law of Nations . . . .” Rarely cited by the Supreme Court, relied upon in only a handful of cases, the Offenses Clause has received little scholarly attention. Yet the long- ignored Clause lies at the heart of the modern dispute over federalism and foreign affairs and is central to a hotly debated constitutional issue: the federal government's authority to regulate areas traditionally governed by the states. Properly understood, the Offenses Clause grants Congress broad powers to incorporate international law into federal law, even when such norms infringe upon areas otherwise regulated by the states. The clause therefore provides heretofore unrecognized support for a broad interpretation of the federal government's foreign affairs power. The framers understood foreign affairs to be different from other issues facing the nation, requiring federal action to centralize and regularize our interactions with the rest of the world. The clause therefore provides strong constitutional support for congressional actions heretofore based on less specific constitutional powers. Finally, an understanding of the context in which the Clause was adopted and the concerns that it addressed undercuts claims that international law, or even foreign affairs, should be limited to the kinds of international problems confronting the framers in the eighteenth century. To the contrary, the framers understood that the law of nations would evolve in ways that they could not control or predict and intended to grant to Congress the power to respond to that evolution. Ironically, a narrow view of the foreign affairs power, based on a misguided application of federalism principles, threatens to pull the United States away from universal application of international law norms at the same time that economic, political, and social concerns increase the need for uniform enforcement of those norms. Fortunately, our Constitution anticipated the likelihood of dramatic changes in the scope of international law and granted our federal government the powers necessary to lead the nation into the interconnected world we inhabit today.