Restating The Charming Betsy as a Canon of Avoidance

Abstract

Abstract This chapter examines the Charming Betsy canon, which was recognized by the Supreme Court more than two centuries ago and has since become a well-known tool of statutory construction. As formulated in 1804, the canon instructed that a federal statute “ought never to be construed to violate the law of nations if any other possible construction remains.” At the time The Charming Betsy was decided, the canon functioned as a canon of constitutional avoidance. It ensured that courts did not usurp the constitutional authority of the political branches over the conduct of war and foreign relations by violating the rights of foreign nations without clear authorization to do so. In 1987, the Third Restatement arguably expanded the domain of the canon beyond its original formulation and actual use by the Supreme Court, instructing courts to construe statutes “so as not to conflict with international law.” Although the Fourth Restatement does not include a general restatement of the Charming Betsy canon, Section 406 restates an important application of the canon to avoid conflicts with international law governing jurisdiction to prescribe. This chapter proposes a new general restatement of the Charming Betsy canon that reflects its actual use by the Court as a canon of avoidance, and excludes potential misuses that might contradict, rather than uphold, the U.S. Constitution’s allocation of powers.