Triumph Over Transnational Constitutionalism

Separation of Powers, Sovereignty, and National Security

 

Abstract

At the beginning of the twenty-first century, a growing movement in American legal thought urged courts to align constitutional interpretation with evolving international norms. Foreign judicial decisions, international declarations, and global “consensus” were increasingly cited in domestic adjudication. Some federal courts expanded the use of customary international law as a source of enforceable federal claims. To many observers, transnational constitutionalism appeared ascendant. Two decades later, the trajectory looks markedly different.

 

Through decisions such as Sosa v. Alvarez-Machain, Medellín v. Texas, Kiobel v. Royal Dutch Petroleum Co., Jesner v. Arab Bank, PLC, Nestlé USA, Inc. v. Doe, West Virginia v. EPA, and Nat’l Fed’n of Indep. Bus. v. Department of Labor, and its renewed emphasis on constitutional text and history, the Supreme Court reaffirmed a foundational principle that international norms do not become domestic law unless the Constitution’s political processes make them so. The incorporation of global standards into American law requires constitutional authorization, not judicial innovation. This paper argues that this retrenchment is not isolationism. It is constitutional fidelity.

 

Separation of powers safeguards democratic accountability by ensuring that major legal commitments—especially those affecting foreign affairs and national policy—are made by politically responsible branches. Courts are not designed to manage diplomacy, calibrate military strategy, or balance international obligations against domestic priorities. When judges create new domestic remedies based on evolving global consensus, they risk displacing Congress, intruding upon executive authority, and unsettling national security decision-making.

 

National security considerations underscore this structural reality. International tribunal judgments, non-self-executing treaties, and aspirational declarations may bind the United States internationally. But their domestic enforceability must pass through constitutional channels. That process preserves sovereignty—not as isolation from the world, but as the people’s right to govern themselves through representative institutions.

 

The past two decades reveal a decisive constitutional shift. What once appeared to be the rise of transnational constitutionalism has properly given way to a reaffirmation of structural limits, institutional competence, and judicial restraint. The result is a strengthened constitutional order—one capable of engaging globally while remaining anchored in popular sovereignty, separation of powers, and the rule of law. The triumph over transnational constitutionalism is ultimately a triumph of constitutional structure over jurisprudential activism, and of ordered liberty over interpretive improvisation.

 

 

Chapter One

THE ORIGINAL CONCERN: JUDICIAL LEGITIMACY AND INTERNATIONAL NORMS

 

At the dawn of the twenty-first century, a discernible jurisprudential shift was underway in the federal courts. In certain prominent decisions, members of the Supreme Court invoked international materials—foreign court opinions, international declarations, unratified conventions, and evolving claims of “world consensus”, all as interpretive aids in resolving domestic constitutional disputes.¹ What had once been peripheral references became, in some instances, persuasive authority.² To some observers, this development represented a multicultural evolution of American constitutionalism.³ To others, it signaled something more troubling, a gradual migration of lawmaking authority away from constitutionally accountable institutions and toward an unelected judiciary increasingly untethered from the structural limits of Article III.⁴

 

It was against this backdrop that my, and my colleagues, 2005 article in the Regent Journal of International Law examined Sosa v. Alvarez-Machain⁵ and its implications for the Alien Tort Statute (ATS). ⁶ The central concern animating that article was not hostility to international law as such. The United States has long participated in the law of nations. The Framers themselves understood the relevance of international norms governing piracy, safe conduct, and offenses against ambassadors. ⁷ Rather, the concern was institutional and constitutional. When federal courts expand the scope of domestically enforceable law by drawing upon evolving international norms, especially norms not ratified, not self-executing, or expressly rejected by the political branches, they risk exceeding the authority delegated to them under the Constitution.⁸

 

The legitimacy of the federal judiciary rests upon a delicate structural equilibrium. Unlike the political branches, the judiciary possesses neither the power of the purse nor the power of the sword.⁹ Its authority derives instead from public confidence that it interprets and applies law rather than creates it.¹⁰ In a constitutional republic committed to popular sovereignty, that confidence depends upon judicial fidelity to the separation of powers.¹¹ Courts may interpret treaties ratified pursuant to Article II.¹² They may apply statutes enacted under Article I.¹³ They may enforce constitutional commands rooted in text, history, and structure.¹⁴ But when they innovate causes of action fashioned from contested international consensus, absent legislative authorization, they risk assuming a role more legislative than judicial.¹⁵

 

The expansion of ATS litigation in the wake of Filártiga v. Peña-Irala¹⁶ illustrated the danger. In Filártiga, the Second Circuit breathed new life into a long-dormant 1789 jurisdictional statute, concluding that federal courts could recognize contemporary customary international law norms as actionable under federal common law.¹⁷ Over the following decades, lower courts entertained claims grounded not only in universally condemned offenses such as torture, but increasingly in broader human rights instruments and international declarations whose domestic legal status was, at best, ambiguous.¹⁸ Non-self-executing treaties were cited as evidence of binding norms.¹⁹ United Nations resolutions were treated as authoritative statements of customary law.²⁰ Even conventions never ratified by the United States were invoked as interpretive guides.²¹

 

The cumulative effect was to blur the constitutionally critical distinction between international obligation and domestic enforceability.²² Under our constitutional design, treaties may bind the United States internationally without automatically creating privately enforceable rights in federal court.²³ The political branches retain authority to determine whether and how international commitments will be implemented domestically.²⁴ When courts collapse that distinction, transforming aspirational or non-self-executing instruments into judicially enforceable law, they effectively bypass the structural safeguards embedded in Articles I and II.²⁵

 

The danger is not merely doctrinal confusion. It is institutional destabilization. If federal judges may define the content of enforceable domestic law by reference to evolving global norms not adopted through constitutionally prescribed processes, then the judiciary becomes a vehicle for transnational policymaking.²⁶ Such a development erodes democratic accountability, intrudes upon the foreign affairs prerogatives of the political branches,²⁷ and invites the perception that judicial outcomes reflect ideological preference rather than legal constraint.²⁸

 

The concern, therefore, was, and remains, structural rather than parochial. A constitutional order committed to limited government depends upon institutional self-restraint.²⁹ The separation of powers is not a technical allocation of bureaucratic functions; it is a liberty-preserving architecture.³⁰ Each branch must exercise only the authority entrusted to it.³¹ When courts assume responsibility for incorporating evolving international norms into domestic law absent legislative mandate, they risk displacing the political branches and unsettling the balance designed to secure ordered liberty.³²

 

It was precisely here that Sosa assumed significance.³³ While the Court did not foreclose all ATS claims grounded in customary international law, it imposed a demanding standard.³⁴ Only those norms that are specific, universal, and obligatory, comparable in definiteness to the 18th-century paradigms understood at the founding, would suffice.³⁵ Moreover, the Court emphasized caution, separation-of-powers concerns, and the absence of congressional authorization for expansive judicial innovation.³⁶

 

In our original article, we described this development as salutary. ³⁷ Not because it repudiated international law, but because it restored constitutional proportion. By narrowing the scope of judicially cognizable international norms, Sosa reaffirmed that federal courts are courts of limited jurisdiction, not international tribunals of general authority. ³⁸ It signaled that the incorporation of international commitments into domestic law is, in the first instance, a matter for the political branches.³⁹

 

The deeper issue, then, was judicial legitimacy. Courts retain public trust when they adhere to constitutional boundaries.⁴⁰ They jeopardize that trust when they appear to legislate from evolving global consensus untethered from American constitutional processes.⁴¹ My concern in 2005 was that an expansive transnational constitutionalism threatened to erode that trust.⁴² Sosa suggested a course correction.⁴³ The ensuing two decades would reveal whether that correction represented a temporary pause or the beginning of a more enduring restoration of constitutional restraint.

 

Chapter Two

RETRENCHMENT AND STRUCTURAL CONSOLIDATION: MEDELLÍN, SOVEREIGNTY, AND THE CONSTITUTIONAL LIMITS OF INTERNATIONAL AUTHORITY

 

If Sosa marked a structural inflection point in the Alien Tort Statute context,⁴⁴ Medellín v. Texas⁴⁵ confirmed that the underlying issue was not merely statutory interpretation, but constitutional architecture. In Medellín, the Court confronted directly the question that lurked beneath the transnational turn of the early 2000s: Who determines whether and how international commitments bind domestic courts?

 

The case arose from a judgment of the International Court of Justice purporting to require “review and reconsideration” of certain state criminal convictions under the Vienna Convention on Consular Relations.⁴⁶ The petitioner urged the Supreme Court to treat that international judgment as binding federal law, overriding state procedural default rules and federal habeas limitations enacted by Congress.⁴⁷ The structural implications were profound.

 

In the amicus brief I filed on behalf of Alliance Defending Freedom in Medellín, we urged the Court to reaffirm a principle deeply rooted in the Constitution’s Supremacy Clause; treaties are indeed part of the “supreme Law of the Land,” but so too are the Constitution itself and statutes enacted pursuant to it.⁴⁸ The Clause does not elevate treaties above the Constitution or subsequent Acts of Congress.⁴⁹ Nor does it empower international tribunals to displace domestic procedural law absent express constitutional authorization.⁵⁰

 

The Vienna Convention itself expressly provides that its rights “shall be exercised in conformity with the laws and regulations of the receiving State.”⁵¹ The Court had already recognized in Breard v. Greene that American procedural default rules govern the domestic implementation of treaty claims.⁵² Congress reinforced those procedural rules in the Anti-Terrorism and Effective Death Penalty Act of 1996, enacted decades after ratification of the Convention.⁵³ Under long-settled doctrine, when a statute and a treaty conflict, the later-in-time enactment controls.⁵⁴ The Constitution itself supplies that rule.⁵⁵

 

The petitioner’s theory in Medellín required something far more dramatic. It required the Court to treat the judgment of an unelected international tribunal as controlling domestic law, even where Congress had enacted contrary statutory limitations and where the treaty at issue was not self-executing.⁵⁶ That position threatened to subordinate the Constitution’s separation of powers to an international adjudicatory body never contemplated by the Framers. ⁵⁷. The Court declined the invitation.

 

In holding that the relevant treaty provisions were non-self-executing and that neither the ICJ judgment nor the President’s memorandum could convert them into binding federal law absent congressional implementation, the Court reaffirmed a foundational structural truth that  international obligation does not equal domestic enforceability.⁵⁸ The political branches determine whether and how treaty commitments are implemented within the United States.⁵⁹ Article III courts do not possess general authority to transform international understandings into judicially enforceable mandates.⁶⁰

 

The reasoning of Medellín paralleled and deepened the logic of Sosa.⁶¹ Both decisions emphasized institutional competence and legislative primacy.⁶² Both warned against judicial innovation in areas fraught with foreign policy consequences.⁶³ And both implicitly rejected the notion that evolving international consensus, whether expressed through declarations, non-self-executing treaties, or international tribunal judgments, may displace constitutionally enacted domestic law.⁶⁴

The structural stakes in Medellín were not abstract. To treat ICJ decisions as binding domestic law would have altered the constitutional balance in at least three ways. First, it would have displaced Congress. The Constitution vests legislative power in politically accountable representatives. ⁶⁵ If an international tribunal could effectively nullify subsequent Acts of Congress, legislative supremacy within its constitutional sphere would be undermined.⁶⁶ Second, it would have displaced the Constitution itself. The Supremacy Clause places the Constitution first, before statutes and treaties alike.⁶⁷ As the Court held in Reid v. Covert, no treaty may contravene constitutional protections. ⁶⁸ To elevate international adjudications above domestic constitutional constraints would invert that hierarchy. Third, it would have eroded national sovereignty properly understood, not as isolationism, but as the people’s right to govern themselves through constitutionally prescribed mechanisms.⁶⁹ The Framers were well acquainted with the law of nations,⁷⁰ yet they crafted a system in which international commitments would be mediated through domestic political processes.⁷¹ The Constitution does not contemplate submission of internal criminal procedure to the final authority of foreign judges.

 

The broader jurisprudential context underscores the significance of Medellín. In the early 2000s, “transnational constitutionalism” emerged as a prominent intellectual movement. It urged courts to harmonize American constitutional interpretation with evolving global norms.⁷² That movement frequently invoked international materials as persuasive authority. ⁷ Yet the Court’s reasoning in Medellín marked a decisive boundary by holding that whatever persuasive force international norms may possess, their domestic enforceability depends upon constitutional authorization.⁷⁴

 

The decisions that followed continued this structural consolidation. In Kiobel, the Court limited ATS claims through the presumption against extraterritoriality, recognizing the foreign policy implications of judicial overreach.⁷⁵ In Jesner, the Court emphasized that creating new causes of action under the ATS is a legislative, not judicial, function.⁷⁶ In Nestlé, the Court required concrete domestic conduct before permitting ATS litigation to proceed.⁷⁷

 

Meanwhile, outside the ATS context, the Court’s invocation of the major questions doctrine reinforced the same principle of institutional restraint: significant policy determinations require clear congressional authorization. ⁷⁸ Whether the question concerns environmental regulation, public health mandates, or international adjudications, the underlying constitutional instinct is consistent. Courts must not assume sweeping authority absent unmistakable delegation. ⁷⁹

 

Even in constitutional adjudication, the Court has retreated from reliance on foreign consensus. Decisions such as Dobbs v. Jackson Women’s Health Organization signal a renewed commitment to text, history, and tradition rooted in the American constitutional order. ⁸⁰ The interpretive methodology is domestic, not transnational.

 

None of this denies the continuing importance of international law in its proper sphere. Treaties ratified and implemented through constitutional processes bind the nation. ⁸¹ Customary international norms governing state-to-state conduct remain relevant.⁸² But the incorporation of international norms into domestic law occurs through the political branches, not judicial improvisation. ⁸³

 

In this respect, the post-Sosa and post-Medellín jurisprudence reflects not hostility to international engagement, but fidelity to constitutional design. The separation of powers is not an obstacle to global cooperation. It is the mechanism by which such cooperation gains democratic legitimacy.⁸⁴ International commitments implemented through Congress command respect because they arise from the people’s representatives. Judicially constructed obligations drawn from non-self-executing instruments or international judgments do not.

 

The triumph, therefore, is structural. It is the reaffirmation that the Constitution remains the supreme law of the land—not only in theory, but in practice.⁸⁵ Federal courts preserve their institutional legitimacy when they resist the temptation to substitute evolving international sentiment for constitutional command.⁸⁶ In Sosa, the Court closed the door to expansive federal common lawmaking in the name of international norms.⁸⁷ In Medellín, it reinforced that closure by insisting that domestic enforceability depends upon constitutional authorization.⁸⁸

 

What emerged over the past two decades is not the ascendancy of transnational constitutionalism, but its containment. The judiciary has increasingly recognized that its legitimacy depends upon restraint. And restraint, in turn, depends upon fidelity to the Constitution’s structural safeguards. ⁸⁹

 

 

Chapter Three

TRIUMPH OVER TRANSNATIONAL CONSTITUTIONALISM: STRUCTURAL FIDELITY AND THE REAFFIRMATION OF CONSTITUTIONAL LIMITS

 

At the turn of the twenty-first century, transnational constitutionalism appeared ascendant. In elite legal circles and in certain judicial opinions, it was increasingly suggested that American constitutional interpretation should harmonize with evolving international norms.⁹⁰ Foreign court decisions were cited as persuasive authority.⁹¹ International declarations were invoked as evidence of constitutional meaning.⁹² Customary international law was treated, in some quarters, as a source of federal common law capable of shaping domestic rights and remedies.⁹³

 

Yet, with us few pointing to that still small voice of conscience, constitutional structure proved more durable than jurisprudential fashion.

 

What unfolded over the past two decades was not the maturation of transnational constitutionalism, but its decisive containment. Through a series of cases, Sosa, Medellín, Kiobel, Jesner, Nestlé, the major questions decisions, and the methodological turn toward text and history, the Supreme Court reaffirmed a foundational principle of American constitutionalism.  International norms do not become domestic law absent constitutional authorization. ⁹⁴ The Constitution, not global consensus, remains the supreme rule of decision in American courts.⁹⁵

 

The story of the past twenty years is therefore properly understood as a triumph over transnational constitutionalism, not triumph over international engagement, but triumph of constitutional structure over judicial innovation untethered from popular sovereignty.⁹⁶

 

The Alien Tort Statute litigation of the post-Filártiga era provided one vehicle for this development.⁹⁷ If federal courts could recognize evolving customary international norms as actionable federal common law, then the judiciary would become, in effect, an arbiter of global standards.⁹⁸ Sosa arrested that expansion by demanding specificity, universality, and obligatory character comparable to the paradigms understood at the founding.⁹⁹ Yet the deeper structural issue persisted. That is, who determines which international norms bind the United States domestically?

 

Medellín answered that question with constitutional clarity. International obligation does not automatically produce domestic enforceability.¹⁰⁰ Treaties bind internationally, but their domestic implementation depends upon constitutional mechanisms.¹⁰¹ The President may negotiate. The Senate may ratify.  Congress may legislate. ¹⁰² Article III courts may not supply what those branches have withheld.¹⁰³ The Court’s insistence on non-self-execution absent implementing legislation restored a critical boundary between international diplomacy and domestic adjudication. ¹⁰⁴

 

The subsequent ATS decisions confirmed that the judiciary would not reclaim the expansive posture of the late twentieth century. Kiobel applied the presumption against extraterritoriality, signaling that the ATS was not a roving commission to adjudicate foreign controversies.¹⁰⁵ Jesner underscored that the creation of new causes of action implicates legislative judgment, not judicial preference.¹⁰⁶ Nestlé further constrained claims to those grounded in concrete domestic conduct.¹⁰⁷ In each instance, the Court emphasized institutional competence and separation of powers.¹⁰⁸ The judiciary is not an international tribunal of general jurisdiction. It is a court of limited authority within a constitutional republic.

 

Yet the triumph over transnational constitutionalism is not confined to the ATS or treaty implementation doctrine. It is visible as well in the Court’s broader separation-of-powers jurisprudence. The major questions doctrine, articulated and sharpened in cases such as West Virginia v. EPA and NFIB v. OSHA, rests upon a structural intuition deeply consonant with the concerns raised in 2005.¹⁰⁹ Major policy determinations require clear congressional authorization.¹¹⁰ Courts will not presume sweeping delegations of power, particularly in matters of vast economic or political significance.¹¹¹ Although these cases concern administrative agencies rather than international tribunals, the constitutional instinct is identical, politically accountable branches must make major decisions.¹¹²

 

This instinct reflects the Framers’ understanding that liberty is preserved not by concentration of authority, but by its careful distribution.¹¹³ As Madison warned, passion and ambition attend every human institution.¹¹⁴ The Constitution’s separation of powers was designed to mitigate those tendencies by requiring concurrence among distinct branches before significant authority is exercised.¹¹⁵ Transnational constitutionalism, by contrast, risked concentrating interpretive authority in the judiciary, an institution insulated from electoral correction, while diminishing the role of Congress, the President, and the states.¹¹⁶

 

Equally significant is the Court’s methodological turn away from foreign-law citation in constitutional interpretation. In the early 2000s, references to European consensus and international opinion appeared in Eighth Amendment and substantive due process cases. ¹¹⁷ However well-intentioned, such references invited the perception that constitutional meaning might evolve in response to global sentiment rather than domestic text and U.S. legal tradition.¹¹⁸ The Court’s more recent jurisprudence has largely abandoned that approach. Dobbs is emblematic. ¹¹⁹ Whatever one’s view of its holding, the methodology is unmistakable.  Constitutional meaning is derived from the Constitution’s text, history, and structure, not from foreign court decisions or international declarations.¹²⁰

 

This methodological shift matters profoundly. A written Constitution secures liberty precisely because it binds interpreters.¹²¹ Its authority does not fluctuate with global opinion.¹²² To consult foreign consensus as a determinative guide risks transforming constitutional adjudication into a comparative enterprise untethered from the sovereign will of the American people.¹²³ The Constitution was ratified by the people of the several States.¹²⁴ It derives its authority from their consent.¹²⁵ No comparable consent attaches to the resolutions of international bodies or the jurisprudence of foreign courts.

 

The triumph over transnational constitutionalism, therefore, is not triumph over international engagement. The United States continues to participate in treaties, alliances, and global institutions. ¹²⁶ It honors international commitments duly ratified and implemented. ¹²⁷ But those commitments enter domestic law through constitutional channels. ¹²⁸ The people, through their representatives, determine when and how international norms become binding internally.

 

What has emerged over the past two decades is a coherent structural reaffirmation. First, international norms are not self-executing absent clear constitutional authorization. ¹²⁹ Second, federal courts lack general authority to create new causes of action grounded in evolving global standards.¹³⁰ Third, major policy determinations require legislative clarity. ¹³¹ Fourth, constitutional interpretation is anchored in domestic text and tradition rather than foreign consensus.¹³²

 

These developments reflect not isolationism, but constitutional fidelity. They acknowledge that in a republic, legitimacy depends upon political accountability. ¹³³ Courts preserve their authority when they exercise restraint. They undermine it when they assume powers not delegated. ¹³⁴ The separation of powers is not an antiquarian artifact. It is the framework within which liberty endures.¹³⁵

 

In this sense, the story of the past twenty years is not one of judicial retreat, but of constitutional restoration. The early promise of transnational constitutionalism suggested a jurisprudence responsive to global norms. The ensuing doctrine has reaffirmed instead that constitutional governance remains grounded in popular sovereignty, mediated through representative institutions, and enforced by a judiciary conscious of its limits. ¹³⁶

 

The triumph, then, is structural and jurisprudential. It is the reassertion that the Constitution, not evolving international sentiment, remains the supreme law of the land.¹³⁷ It is the reaffirmation that federal courts exercise judicial power, not legislative or executive will.¹³⁸ And it is the vindication of a principle as old as the Republic itself, that liberty is secured not by the expansion of judicial authority, but by its faithful confinement within constitutional bounds.¹³⁹

 

Chapter 4

CONSTITUTIONAL MORALITY, INSTITUTIONAL LEGITIMACY, NATIONAL SECURITY, AND THE FUTURE OF JUDICIAL RESTRAINT

 

The developments surveyed in this paper are not merely doctrinal corrections. They represent something deeper, a reaffirmation of constitutional morality.

 

The American constitutional order is not morally neutral. Rathe, it rests upon the following foundational commitments: 1) that sovereignty resides in the people; 2) that governmental power must be divided and limited; 3) that lawmaking authority must be exercised through representative institutions; and 40 that the judiciary, though independent, is not supreme in all things, but bound by the Constitution’s text, structure, and history.¹⁴⁰ These commitments are not procedural abstractions. They form the moral architecture of ordered liberty. ¹⁴¹

 

Transnational constitutionalism, especially in its more ambitious forms, posed a subtle challenge to this architecture. It suggested that constitutional meaning might evolve through engagement with international sentiment.¹⁴² It implied that global consensus could illuminate, refine, or even reshape domestic rights.¹⁴³ It blurred the distinction between persuasive comparative reference and authoritative normative adoption.¹⁴⁴ In doing so, it risked relocating ultimate interpretive authority away from the constitutional text ratified by the American people and toward sources not adopted through constitutionally prescribed processes.¹⁴⁵ The risk was not that international law would be consulted. The risk was that constitutional boundaries would be displaced.

 

The Supremacy Clause establishes a hierarchy of the Constitution, laws made pursuant to it, and treaties made under the authority of the United States.¹⁴⁶ That hierarchy presupposes democratic mediation. Treaties require presidential negotiation and senatorial consent. ¹⁴⁷ Statutes require bicameral passage and presentment. ¹⁴⁸ Courts interpret what has been enacted, they do not substitute international judgment for constitutional command. ¹⁴⁹ When courts enforce international norms not adopted through those channels, they alter the constitutional design. They relocate authority from politically accountable institutions to judicial chambers. ¹⁵⁰ However well-intentioned, such relocation strains the moral foundation of popular sovereignty.

 

The Framers understood that sinful human nature necessitates structural safeguards. As Madison observed, the Constitution presumes both “a degree of depravity in mankind which requires a certain degree of circumspection and distrust” and qualities that “justify a certain portion of esteem and confidence.” ¹⁵¹ The separation of powers reflects that realism. Each branch checks the others. None may claim plenary authority. ¹⁵² Judicial restraint, properly understood, is therefore not abdication. It is constitutional fidelity. ¹⁵³

 

It recognizes that the judiciary’s legitimacy depends not upon policy outcomes, nor upon alignment with global trends, but upon adherence to delegated authority. Courts command obedience because they apply law enacted through constitutionally prescribed processes. ¹⁵⁴ If courts are perceived as importing norms from external sources without democratic authorization, that legitimacy erodes. ¹⁵⁵

 

The retrenchment traced from Sosa to Medellín and beyond thus serves not only federalism and foreign affairs principles, but the moral credibility of the judiciary itself. By insisting upon congressional authorization for domestic enforcement of international obligations, the Court reaffirmed that the people govern themselves through representative institutions.¹⁵⁶ By limiting ATS innovation, the Court reaffirmed that federal common law is not an open-ended instrument of globalized constitutionalism.¹⁵⁷ By invoking the major questions doctrine, the Court reaffirmed that significant policy decisions belong to politically accountable actors.¹⁵⁸ By returning constitutional interpretation to text and history, the Court reaffirmed that the Constitution’s authority derives from ratification, not reputation.¹⁵⁹

 

National Security and the Constitutional Allocation of Foreign Affairs Authority

 

These structural principles assume particular importance in matters touching foreign affairs and national security.¹⁶⁰ If the separation of powers is the Constitution’s safeguard of liberty in ordinary governance, it is indispensable in the realm of external relations.¹⁶¹ The temptation to relocate authority from politically accountable branches to the judiciary is nowhere more consequential than where diplomatic, military, and intelligence judgments are implicated.¹⁶²

 

The Constitution carefully allocates foreign affairs authority. Congress is empowered to regulate foreign commerce, define and punish offenses against the law of nations, declare war, and raise and support armies.¹⁶³ The President is designated Commander in Chief and vested with authority to negotiate treaties, subject to senatorial advice and consent.¹⁶⁴ Article III courts are granted jurisdiction to decide cases and controversies arising under the Constitution, laws, and treaties of the United States, but they are not given general supervisory authority over foreign policy.¹⁶⁵

 

Structural fidelity disciplines all branches alike. Just as courts may not convert non-self-executing international commitments into domestic law absent congressional authorization, ¹⁶⁶ neither may the Executive unilaterally transform international agreements or strategic judgments into binding domestic mandates. ¹⁶⁷ The Constitution vests foreign affairs authority in a separated structure, not in a single, consolidated will. ¹⁶⁸

 

This allocation reflects prudence. Decisions affecting diplomacy, sanctions, military operations, intelligence coordination, and treaty implementation require unified strategic judgment. They often depend upon classified information, evolving geopolitical realities, and delicate negotiations with foreign sovereigns. The political branches possess both the institutional competence and the democratic accountability to balance these considerations. ¹⁶⁹

 

When courts extend domestic enforceability to international norms not adopted through constitutional mechanisms, they risk unsettling that allocation. Judicial recognition of new causes of action grounded in evolving global standards may impose diplomatic costs not weighed by Congress or the Executive.¹⁷⁰ The enforcement of international tribunal decisions contrary to domestic procedural law may intrude upon carefully calibrated federal-state relationships.¹⁷¹ Expansive interpretation of customary international law may expose military or intelligence officials to litigation implicating sensitive operational matters.¹⁷²

 

The Supreme Court’s caution in Sosa—that crafting remedies for violations of new international norms may raise risks of adverse foreign policy consequences, recognized this institutional reality. ¹⁷³ The Court’s subsequent decisions in Kiobel, Jesner, and Nestlé further reflect an appreciation that expansive international-law-based litigation carries implications beyond the immediate dispute. ¹⁷⁴

 

The reasoning of Medellín likewise illustrates the national security dimension of constitutional restraint. To treat judgments of the International Court of Justice as automatically binding domestic law would have altered not merely procedural doctrine, but the nation’s strategic autonomy.¹⁷⁵ It would have permitted an international tribunal, whose members are neither appointed by the President nor confirmed by the Senate, to dictate domestic criminal procedure notwithstanding contrary congressional enactments.¹⁷⁶ The Court declined that invitation, reaffirming that international obligation does not equal domestic enforceability absent constitutional authorization.¹⁷⁷

 

National security depends upon this clarity. Treaty commitments bind the United States internationally. But the means and extent of domestic implementation remain subject to constitutional processes. ¹⁷⁸ Congress may enact implementing legislation. It may calibrate remedies.  It may determine how international obligations interact with domestic priorities. That flexibility is itself an aspect of sovereignty properly understood, not isolationism, but self-government under law.¹⁷⁹

 

Expansive judicial incorporation of international norms also carries risks of strategic litigation. Modern conflict increasingly includes legal dimensions. The appropriate response is not judicial abdication, but constitutional discipline. Where Congress has clearly authorized remedies, courts may enforce them. Where it has not, courts should hesitate before creating new avenues of liability grounded in contested global standards. ¹⁸⁰

 

Judicial restraint in this sphere is not indifference to justice. It is recognition that justice in a constitutional republic is mediated through structure. The people, through their representatives, determine how international commitments are implemented domestically. Courts preserve both liberty and security when they honor that allocation. ¹⁸¹

 

The Enduring Precondition of Ordered Liberty

 

The triumph over transnational constitutionalism, therefore, is not triumph over international engagement. The United States continues to participate in treaties, alliances, and global institutions. ¹⁸² It honors commitments duly ratified and implemented. ¹⁸³ But those commitments enter domestic law through constitutional channels. ¹⁸⁴ The people, acting through representative institutions, determine when and how international norms become binding internally. ¹⁸⁵ To collapse that distinction is to invite confusion between international aspiration and domestic command.

 

Looking forward, the pressures that gave rise to transnational constitutionalism will persist. Globalization accelerates. International institutions proliferate. Normative claims framed in universal terms will continue to press upon domestic courts. Judges will face invitations to consult foreign authority in difficult cases. Advocates will urge harmonization with emerging global consensus. ¹⁸⁶ The question is not whether such materials may be studied. The question is whether they may supplant constitutional structure.

 

The past two decades offer a measured answer. Federal courts may acknowledge international context, but they must not displace constitutional allocation of authority. They may interpret treaties, but only within the bounds of self-execution and legislative implementation. They may recognize narrow and historically grounded international norms, but not craft new causes of action untethered from congressional mandate. They may consider comparative perspectives, but constitutional meaning must ultimately rest upon American text, history, and tradition. ¹⁸⁷ In this respect, constitutional restraint is not reactionary. It is principled.

 

It reflects confidence that the American constitutional order, shaped by the people and sustained by separation of powers, remains capable of governing a complex world without surrendering its sovereignty or moral foundations. The judiciary best preserves its institutional legitimacy not by leading global movements, but by honoring constitutional boundaries. ¹⁸⁸

 

The triumph over transnational constitutionalism is thus a triumph of ordered liberty over interpretive improvisation.  It is the triumph of representative government over judicial transnationalism. And it is the triumph of constitutional fidelity over jurisprudential activism. The strength of the American judiciary lies not in its capacity to innovate, but in its willingness to be bound. ¹⁸⁹

 

 

FOOTNOTES

1. See Roper v. Simmons, 543 U.S. 551, 575–78 (2005); Lawrence v. Texas, 539 U.S. 558, 576–77 (2003); Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
2. See Roper, 543 U.S. at 575–78.
3. See Harold Hongju Koh, International Law as Part of Our Law, 98 Am. J. Int’l L. 43 (2004).
4. See Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 Am. J. Int’l L. 57 (2004).
5. 542 U.S. 692 (2004).
6. 28 U.S.C. § 1350.
7. See U.S. Const. art. I, § 8, cl. 10; The Federalist No. 42 (James Madison).
8. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997).
9. The Federalist No. 78 (Alexander Hamilton).
10. See Alexander M. Bickel, The Least Dangerous Branch 16–23 (1962).
11. The Federalist No. 51 (James Madison).
12. U.S. Const. art. II, § 2.
13. U.S. Const. art. I, § 1.
14. See Washington v. Glucksberg, 521 U.S. 702, 710–19 (1997).
15. See Sosa, 542 U.S. at 726–28.
16. 630 F.2d 876 (2d Cir. 1980).
17. Filártiga, 630 F.2d at 884–85.
18. See Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984).
19. See Medellín v. Texas, 552 U.S. 491, 504–06 (2008).
20. See Bradley & Goldsmith, supra note 8, at 839–42.
21. See Alford, supra note 4, at 58–60.
22. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).
23. See Medellín, 552 U.S. at 504–06.
24. See id.; Whitney v. Robertson, 124 U.S. 190, 194 (1888).
25. See U.S. Const. arts. I–II.
26. See Bradley & Goldsmith, supra note 8, at 870–73.
27. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
28. See Bickel, supra note 10, at 16–23.
29. The Federalist No. 51 (James Madison).
30. Id.
31. See INS v. Chadha, 462 U.S. 919, 951 (1983).
32. See Sosa, 542 U.S. at 727–28.
33. Sosa, 542 U.S. 692.
34. See id. at 725–38.
35. Id. at 732.
36. See id. at 727–28.
37. Nelson P. Miller, Steven G. Fitschen & William Wagner, Federal Courts Enforcing International Norms: The Salubrious Effect of Sosa v. Alvarez-Machain on the Institutional Legitimacy of the Judiciary, 3 Regent J. Int’l L. 1 (2005).
38. See Sosa, 542 U.S. at 726–28.
39. See Medellín, 552 U.S. at 525–26.
40. The Federalist No. 78 (Alexander Hamilton).
41. See Alford, supra note 4.
42. See Koh, supra note 3.
43. See Sosa, 542 U.S. at 725–38.
44. See Sosa, 542 U.S. 692.
45. 552 U.S. 491 (2008).
46. Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J. 12; Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261.
47. Medellín, 552 U.S. at 498–504.
48. U.S. Const. art. VI, cl. 2; William Wagner, Brief of Amicus Curiae in Support of Respondent, Medellín v. Texas, No. 04-5928 (U.S. filed Feb. 22, 2005).
49. Reid v. Covert, 354 U.S. 1, 16–18 (1957).
50. See Medellín, 552 U.S. at 504–06.
51. Vienna Convention, supra note 46, art. 36(2).
52. 523 U.S. 371, 375–77 (1998).
53. 28 U.S.C. § 2254.
54. Whitney, 124 U.S. at 194.
55. U.S. Const. art. VI, cl. 2.
56. See Medellín, 552 U.S. at 504–06.
57. See The Federalist No. 39 (James Madison).
58. Medellín, 552 U.S. at 504–06.
59. See id. at 525–26.
60. See id. at 526–27.
61. Compare Medellín, 552 U.S. at 504–06, with Sosa, 542 U.S. at 725–38.
62. See Sosa, 542 U.S. at 726–28; Medellín, 552 U.S. at 525–26.
63. See Sosa, 542 U.S. at 727–28.
64. See Medellín, 552 U.S. at 504–06.
65. U.S. Const. art. I, § 1.
66. See Whitney, 124 U.S. at 194.
67. U.S. Const. art. VI, cl. 2.
68. Reid, 354 U.S. at 16–18.
69. The Federalist No. 39 (James Madison).
70. U.S. Const. art. I, § 8, cl. 10.
71. See U.S. Const. arts. I–II.
72. See Koh, supra note 3.
73. See Roper, 543 U.S. at 575–78.
74. See Medellín, 552 U.S. at 504–06.
75. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013).
76. Jesner v. Arab Bank, PLC, 584 U.S. 241, 261–63 (2018).
77. Nestlé USA, Inc. v. Doe, 593 U.S. 628, 639–42 (2021).
78. West Virginia v. EPA, 597 U.S. 697, 721–23 (2022); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, OSHA, 595 U.S. 109, 117 (2022).
79. See West Virginia, 597 U.S. at 721–23.
80. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231–33 (2022).
81. U.S. Const. art. II, § 2; art. VI, cl. 2.
82. The Paquete Habana, 175 U.S. 677, 700 (1900).
83. See Medellín, 552 U.S. at 525–26.
84. See Chadha, 462 U.S. at 951.
85. U.S. Const. art. VI, cl. 2.
86. See Sosa, 542 U.S. at 726–28.
87. See id.
88. See Medellín, 552 U.S. at 504–06.
89. The Federalist No. 51 (James Madison).
90. See Koh, supra note 3.
91. See Roper, 543 U.S. at 575–78.
92. See Lawrence, 539 U.S. at 576–77.
93. See Bradley & Goldsmith, supra note 8.
94. See Sosa, 542 U.S. at 725–38; Medellín, 552 U.S. at 504–06; Kiobel, 569 U.S. at 124–25; Jesner, 584 U.S. at 261–63; Nestlé, 593 U.S. at 639–42; West Virginia, 597 U.S. at 721–23; Nat’l Fed’n of Indep. Bus., 595 U.S. at 117; Dobbs, 597 U.S. at 231–33.
95. U.S. Const. art. VI, cl. 2.
96. See The Federalist No. 39 (James Madison).
97. See Filártiga, 630 F.2d 876.
98. See Bradley & Goldsmith, supra note 8.
99. Sosa, 542 U.S. at 732.
100. Medellín, 552 U.S. at 504–06.
101. See id.
102. U.S. Const. art. II, § 2; art. I, § 8.
103. See Medellín, 552 U.S. at 526–27.
104. See id. at 504–06.
105. Kiobel, 569 U.S. at 124–25.
106. Jesner, 584 U.S. at 261–63.
107. Nestlé, 593 U.S. at 639–42.
108. See Sosa, 542 U.S. at 726–28.
109. See West Virginia, 597 U.S. at 721–23; Nat’l Fed’n of Indep. Bus., 595 U.S. at 117.
110. West Virginia, 597 U.S. at 721–23.
111. See id.
112. Nat’l Fed’n of Indep. Bus., 595 U.S. at 117.
113. The Federalist No. 51 (James Madison).
114. Id.
115. Id.
116. See Alford, supra note 4.
117. See Roper, 543 U.S. at 575–78; Atkins, 536 U.S. at 316 n.21.
118. See Alford, supra note 4.
119. Dobbs, 597 U.S. 215.
120. See id. at 231–33.
121. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
122. Id.
123. See Alford, supra note 4.
124. U.S. Const. pmbl.
125. Id.
126. U.S. Const. art. II, § 2.
127. U.S. Const. art. VI, cl. 2.
128. See Medellín, 552 U.S. at 525–26.
129. See id. at 504–06.
130. See Sosa, 542 U.S. at 726–28.
131. See West Virginia, 597 U.S. at 721–23.
132. See Dobbs, 597 U.S. at 231–33.
133. See Chadha, 462 U.S. at 951.
134. See id.
135. The Federalist No. 51 (James Madison).
136. See The Federalist No. 78 (Alexander Hamilton).
137. U.S. Const. art. VI, cl. 2.
138. The Federalist No. 78 (Alexander Hamilton).
139. Id.
140. See Dobbs, 597 U.S. at 231–33.
141. The Federalist No. 51 (James Madison).
142. See Koh, supra note 3.
143. See Roper, 543 U.S. at 575–78; Atkins, 536 U.S. at 316 n.21.
144. See Alford, supra note 4.
145. See id.
146. U.S. Const. art. VI, cl. 2.
147. U.S. Const. art. II, § 2.
148. Chadha, 462 U.S. at 951.
149. The Federalist No. 78 (Alexander Hamilton).
150. See Sosa, 542 U.S. at 726–28.
151. The Federalist No. 55 (James Madison).
152. The Federalist No. 51 (James Madison).
153. See id.
154. The Federalist No. 78 (Alexander Hamilton).
155. See Bickel, supra note 10, at 16–23.
156. Medellín, 552 U.S. at 504–06.
157. See Sosa, 542 U.S. at 726–28.
158. See West Virginia, 597 U.S. at 721–23; Nat’l Fed’n of Indep. Bus., 595 U.S. at 117.
159. See Dobbs, 597 U.S. at 231–33.
160. See Youngstown, 343 U.S. 579.
161. The Federalist No. 51 (James Madison).
162. See Sosa, 542 U.S. at 727–28.
163. U.S. Const. art. I, § 8.
164. U.S. Const. art. II, § 2.
165. U.S. Const. art. III, § 2.
166. Medellín, 552 U.S. at 504–06.
167. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring).
168. The Federalist No. 39 (James Madison).
169. See Chadha, 462 U.S. at 951.
170. See Sosa, 542 U.S. at 727–28.
171. See Medellín, 552 U.S. at 504–06.
172. See Bradley & Goldsmith, supra note 8, at 870–73.
173. Sosa, 542 U.S. at 727–28.
174. See Kiobel, 569 U.S. at 124–25; Jesner, 584 U.S. at 261–63; Nestlé, 593 U.S. at 639–42.
175. See Medellín, 552 U.S. at 504–06.
176. See id. at 516–19.
177. See id. at 504–06.
178. U.S. Const. art. II, § 2; art. VI, cl. 2.
179. The Federalist No. 39 (James Madison).
180. See Sosa, 542 U.S. at 726–28.
181. See Chadha, 462 U.S. at 951.
182. U.S. Const. art. II, § 2.
183. U.S. Const. art. VI, cl. 2.
184. See Medellín, 552 U.S. at 525–26.
185. U.S. Const. pmbl.
186. See Koh, supra note 3.
187. See Dobbs, 597 U.S. at 231–33; Medellín, 552 U.S. at 504–06; Sosa, 542 U.S. at 726–28.
188. The Federalist No. 78 (Alexander Hamilton).
189. Id.

 The author gratefully acknowledges the use of AI-assisted drafting tools (i.e., OpenAI’s ChatGPT) in the preparation of this Issue Brief. All ideas, structural decisions, analysis, and final edits are solely the author’s own, and the author bears full responsibility for the content.