Courts, the Constitution, and Customary International Law: The Intellectual Origins of the Restatement (Third) of the Foreign Relations Law of the United States

Abstract

I contend that the so-called position on the status of international law as federal law - the claim that customary international law constitutes federal common law and informs the scope of constitutional protections of individual rights - changed substantially between the time of its first authoritative articulation and its enshrinement in the first tentative draft of the Third Restatement on the Foreign Relations Law of the United States. I relate these changes to broader jurisprudential, political and international developments in the period between those events. I seek to demonstrate that a strong statement of the modern position reflected the assumptions and anxieties of a precise historical moment. As that moment passed some time ago, I suggest, we can question whether the position has much to say to the present moment.