Eugene Kontorovich, IAS School of Social Science; Northwestern University Law

Discretion, Delegation, and Defining in the Constitution’s Law of Nations Clause

Mon, 03/12/2012
4:30 - 6:00 PM, Kerstetter Room, Marx Hall
Event Category: 

We hope you will join us for a LAPA Seminar with Eugene Kontorovich, Member, Institute for Advanced Study, 2011-12 and Professor, Northwestern University School of Law, to discuss "Discretion, Delegation, and Defining in the Constitution's Law of Nations Clause."  The commentator is Keith Whittington, William Nelson Cromwell Professor of Politics at Princeton.

As always, the LAPA format asks that seminar participants familiarize themselves with the paper in advance. The commentator will open the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception in the Kerstetter Room, giving everyone a chance to mingle and meet.  The topic and paper will be available prior to the seminar.

Abstract:  "Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) – currently before the Supreme Court in the Kiobel case - to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions. First, can Congress "Define" offenses that clearly already exist in international law, or does it have discretion to codify debatable, embryonic, or even nonexistent international law norms? Second, assuming Congress does have creative leeway under the Offenses Clause, what happens to this discretion when it delegates the power to a coordinate branch? Ironically, the Offenses Clause has cross-cutting political implications: a narrow understanding of the power limits the crimes that can be tried before military commissions, but also forecloses much human rights litigation under the ATS.  This Article shows that the Offenses Clause allows Congress only to "Define" – to specify the elements and incidents of - offenses already created by customary international law. It does not allow Congress to create entirely new offenses independent of preexisting international law. At the same time, the Framers understood international law to be vague and intertwined with foreign policy considerations. Reasonable people can widely disagree about what international law is and requires.  Thus, courts reviewing congressional definitions should give them considerable deference. However, whatever discretion Congress has in defining offenses disappears when it broadly delegates that power to another branch, as it has in the ATS."

Eugene Kontorovich's research spans the fields of constitutional law, international law, and law and economics. He has authored a series of papers that extend the economic analysis of law to public law. Kontorovich is also one of the leading experts on maritime piracy, universal jurisdiction and international criminal law. He has been cited by courts and consulted by counsel in historic piracy trials around the world. He is working on a book, "Justice at Sea: Piracy and the Limits of International Criminal Law," under contract with Harvard University Press.  Kontorovich has also written and lectured extensively about the legal aspects of the Israel-Arab conflict. During the 2011-12 academic year, Kontorovich is in Princeton as a resident member of the Institute for Advanced Study's School of Social Science.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University and currently director of graduate studies in the Department of Politics. He is the author of Constitutional Construction: Divided Powers and Constitutional Meaning, and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History , and editor (with Neal Devins) of Congress and the Constitution and editor (with R. Daniel Kelemen and Gregory A. Caldeira) of The Oxford Handbook of Law and Politics. He has published widely on American constitutional theory and development, federalism, judicial politics, and the presidency. He is editor (with Gerald Leonard) of the New Essays on American Constitutional History and editor (with Maeva Marcus, Melvin Urofsky, and Mark Tushnet) of the Cambridge Studies on the American Constitution. He is currently completing a two-volume casebook American Constitutionalism (with Howard Gillman and Mark Graber) and working on a political history of the judicial review of federal statutes.