There is today an ongoing debate over the status of customary international law within U.S. law. Proponents of both “modern” and “revisionist” positions advance absolutist arguments based on vague constitutional provisions, conflicting theories of constitutional structure, cherry-picked statements of favorite Founding Fathers, historical practice of the relevant branches of government, and Supreme Court precedent. Unsurprisingly, consensus around constitutional meaning remains elusive. This Article demonstrates that the current scholarly stalemate is neither novel nor unique to post-Erie debates over federal common law and the power of the federal judiciary. Indeed, Congress addressed many of the same constitutional arguments nearly two centuries ago, when a series of international incidents involving the United Kingdom prompted passage of the Habeas Corpus Act of 1842, an unprecedented expansion of federal judicial power in the antebellum United States. This largely forgotten but formative episode in our nation’s early history suggests that when it comes to the status of international law, and the authority of Congress or the federal courts to incorporate it into U.S. law, there may not be one true constitutional meaning that we have lost along the path of American constitutional history.
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Federalism, Foreign Affairs, and State Courts: The Habeas Corpus Act of 1842 and the Permanent Debate Over the Status of International Law,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol50/iss3/3