The Alien Tort Statute and Article III

Abstract

In 1789, Congress enacted the First Judiciary Act, a statute that established the federal courts and regulated their jurisdiction and structure. Section 9 of the Act, which regulated the jurisdiction of the federal district courts, provided, among other things, that these courts shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. This paper considers Congress's likely intent in enacting this provision, known today as the Alien Tort Statute. In particular, the paper focuses on Congress's likely understanding of the relationship between the Alien Tort Statute and Article III of the Constitution. The paper concludes that Congress did not understand the Alien Tort Statute as creating a federal statutory cause of action. The paper also concludes that, although Congress expected that courts would apply the law of nations as a rule of decision in appropriate cases, it did not view the law of nations as part of the Laws of the United States referred to in Article III. As a result of these two conclusions, Congress would not have understood law of nations cases brought under the Alien Tort Statute as falling within Article III federal question jurisdiction. The federal question construction of the Statute adopted by the Second Circuit in its famous international human rights law decision, Filartiga v. Pena-Irala, is therefore wrong, at least as a matter of original statutory intent. Instead, the paper argues, Congress probably understood the Alien Tort Statute as part of its implementation of Article III alienage diversity jurisdiction. If so, either Congress mistakenly believed that suits between two aliens would fall within alienage diversity jurisdiction, or it believed that suits brought under the Alien Tort Statute would involve at least one U.S. defendant. The weight of the historical evidence, the paper argues, favors the latter conclusion.