Book contents
- Frontmatter
- Contents
- List of Contributors
- Table of Cases
- Acknowledgments
- Introduction
- PART I FROM THE FOUNDING TO THE CIVIL WAR
- PART II FROM THE CIVIL WAR TO THE TURN OF THE CENTURY
- 2 Treaties in the Supreme Court, 1861–1900
- 3 Customary International Law in the Supreme Court, 1861–1900
- 4 International Law as an Interpretive Tool in the Supreme Court, 1861–1900
- 5 A Social History of International Law: Historical Commentary, 1861–1900
- PART III FROM THE TURN OF THE CENTURY TO WORLD WAR II
- PART IV FROM WORLD WAR II TO THE NEW MILLENNIUM
- PART V INTERNATIONAL LAW IN THE U.S. SUPREME COURT IN THE TWENTY-FIRST CENTURY
- V.A TREATIES AFTER 2000
- V.B CUSTOMARY INTERNATIONAL LAW AFTER 2000
- V.C INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION AFTER 2000
- V.D INTERNATIONAL LAW AND STATUTORY INTERPRETATION AFTER 2000
- V.E INTERNATIONAL LAW AND THE WAR ON TERROR
- VI CONCLUSION
- Index
- References
3 - Customary International Law in the Supreme Court, 1861–1900
Published online by Cambridge University Press: 05 July 2011
Book contents
- Frontmatter
- Contents
- List of Contributors
- Table of Cases
- Acknowledgments
- Introduction
- PART I FROM THE FOUNDING TO THE CIVIL WAR
- PART II FROM THE CIVIL WAR TO THE TURN OF THE CENTURY
- 2 Treaties in the Supreme Court, 1861–1900
- 3 Customary International Law in the Supreme Court, 1861–1900
- 4 International Law as an Interpretive Tool in the Supreme Court, 1861–1900
- 5 A Social History of International Law: Historical Commentary, 1861–1900
- PART III FROM THE TURN OF THE CENTURY TO WORLD WAR II
- PART IV FROM WORLD WAR II TO THE NEW MILLENNIUM
- PART V INTERNATIONAL LAW IN THE U.S. SUPREME COURT IN THE TWENTY-FIRST CENTURY
- V.A TREATIES AFTER 2000
- V.B CUSTOMARY INTERNATIONAL LAW AFTER 2000
- V.C INTERNATIONAL LAW AND CONSTITUTIONAL INTERPRETATION AFTER 2000
- V.D INTERNATIONAL LAW AND STATUTORY INTERPRETATION AFTER 2000
- V.E INTERNATIONAL LAW AND THE WAR ON TERROR
- VI CONCLUSION
- Index
- References
Summary
In the period 1861 to 1900, the U.S. Supreme Court under the Chief Justiceships of Roger Taney, Salmon Chase, Morrison Waite, and Melville Fuller presided over a jurisprudential transformation of American law. But its impact on the development of U.S. foreign relations law has not been as well studied. Bracketed between the extraordinary contributions of the Marshall Court and the emergence of the United States as a world superpower in the aftermath of World War I, the period from the Civil War to the end of the nineteenth century has been an underappreciated epoch in studies of the legal dimensions of America's place in a global order. Separated in time from both the originalist moment of the Founding and the first years of the New Republic, as well as from the twentieth century's Pax Americana, the late 1800s seem like a backwater of jurisprudential insight for contemporary understandings of the relationship between international law and U.S. law.
This seems particularly so with the role of customary international law. Partly, of course, this may be a function of customary international law's amorphous character and function in the matrix of legitimate sources of law under the U.S. constitutional order, which I discuss in more detail later. But there is also an empirical challenge to any study of U.S. Supreme Court cases involving customary international law: in some periods of the Court's operation, there are not many of those cases, and those that are reported are of an ambiguous and problematic nature.
Information
- Type
- Chapter
- Information
- International Law in the U.S. Supreme Court , pp. 89 - 123Publisher: Cambridge University PressPrint publication year: 2011
References
Carl B. Swisher, 5 History of the Supreme Court of the United States: The Taney Period, 1836–64 (2010) (Holmes Devise series)
History of the Supreme Court of the United States: Reconstruction and Reunion, 1864–1888 (2010) (Holmes Devise series)
Owen W. Fiss, 8 History of the Supreme Court of the United States: Troubled Beginnings of the Modern State, 1888–1910 (2006) (Holmes Devise series).
Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant 79–82 (1999)
, Reception of the Classical Tradition in International Law: Grotius' De Jure Belli ac Pacis, 10 Emory Int'l L. Rev. 1, 8 n.26 (1996)
, The Paquete Habana: Customary International Law as Part of Our Law, inInternational Law Stories175, 195 (John E. Noyes, Laura A. Dickinson, & Mark W. Janis eds., 2007)Google Scholar
, Cruising in American Waters: Spector, Maritime Conflicts, and Choice of Law, 37 J. Mar. L. & Com. 491, 497–99 (2006).
, Changing Concepts and the Doctrine of Incorporation, 26 Am. J. Int'l L. 239, 242 (1932).
& , Understanding the Resemblance between Modern and Traditional Customary International Law, 40 Va. J. Int'l L. 639, 648–50 (2000)
, Federal Courts, International Tribunals, and the Continuum of Deference, 43 Va. J. Int'l L. 675, 746–50 (2003)
, The Coastal Fishing Exemption from Capture and Targeting: An Example and Analysis of the Origin and Evolution of Customary International Law, 45 Naval L. Rev. 77, 97–98 (1998).
, The Feigned Demise of Prize, 9 Emory Int'l L. Rev. 31, 67–69 (1995)
, The United States and Its Treaties: Observance and Breach, 95 Am. J. Int'l L. 313, 313–18 (2001)
, The Transformation of the Constitutional Regime of Foreign Relations, 85 Va. L. Rev. 1, 28–29 (1999).
, Customary International Law, Congress, and the Courts: Origins of the Later-in-Time Rule, in Making Transnational Law Work in the Global Economy: Essays in Honor of Detlev Vagts 531 (2010).
, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 874–78 (1987)
& , Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997)
, The Law of Our Land: Customary International Law as Federal Law after Erie, 66 Fordham L. Rev. 393, 435–36 (1997)
, Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371, 380 (1997)
, State Courts, Federal Courts and International Cases, 20 Yale J. Int'l L. 1 (1995).
Agora: May the President Violate Customary International Law? (pts. 1 & 2), 80 Am. J. Int'l L. 913 (1986)
The Authority of the United States Executive to Interpret, Articulate or Violate the Norms of International Law, 80 Am. Soc'y Int'l L. Proc. 297 (1986)
, Paquete and the President: Rediscovering the Brief for the United States, 34 Va. J. Int'l L. 981 (1994).
& , The Story of the Prize Cases: Executive Action and Judicial Review in Wartime, inPresidential Power Stories (Christopher H. Schroeder & Curtis A. Bradley eds., 2009)Google Scholar
Accessibility standard: Unknown
Why this information is here
This section outlines the accessibility features of this content - including support for screen readers, full keyboard navigation and high-contrast display options. This may not be relevant for you.Accessibility Information
Accessibility compliance for the PDF of this chapter is currently unknown
and may be updated in the future.
- 1
- Cited by