The law of nations in the united states

1st Edition Anthony J. Bellia Jr.

Visit to download the full and correct content document:
https://textbookfull.com/product/the-law-of-nations-in-the-united-states-1st-edition-ant
hony-j-bellia-jr/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

The United States in the World Economy: Making Sense of

Globalization Anthony Elson

https://textbookfull.com/product/the-united-states-in-the-world-
economy-making-sense-of-globalization-anthony-elson/

The United Nations Convention on the Law of the Sea 1st

Edition Siig

https://textbookfull.com/product/the-united-nations-convention-
on-the-law-of-the-sea-1st-edition-siig/

Saving Spaces: Historic Land Conservation in the United

States John H Sprinkle Jr

https://textbookfull.com/product/saving-spaces-historic-land-
conservation-in-the-united-states-john-h-sprinkle-jr/

Law and practice of the United Nations : documents and

commentary 2nd Edition Chesterman

https://textbookfull.com/product/law-and-practice-of-the-united-
nations-documents-and-commentary-2nd-edition-chesterman/
Basic Facts about the United Nations 42nd Edition
United Nations Department Of Public Information

https://textbookfull.com/product/basic-facts-about-the-united-
nations-42nd-edition-united-nations-department-of-public-
information/

Comparing the States and Communities: Politics,

Government, and Policy in the United States 10th
Edition Harvey J. Tucker

https://textbookfull.com/product/comparing-the-states-and-
communities-politics-government-and-policy-in-the-united-
states-10th-edition-harvey-j-tucker/

Copyright Exhaustion Law And Policy In The United

States And The European Union 1st Edition Péter Mezei

https://textbookfull.com/product/copyright-exhaustion-law-and-
policy-in-the-united-states-and-the-european-union-1st-edition-
peter-mezei/

Critical Race Theory: Black Athletic Sporting

Experiences in the United States 1st Edition Billy J.
Hawkins

https://textbookfull.com/product/critical-race-theory-black-
athletic-sporting-experiences-in-the-united-states-1st-edition-
billy-j-hawkins/

Hydrocarbon Potential in Southeastern United States: A

Review Robert J. Brewer

https://textbookfull.com/product/hydrocarbon-potential-in-
southeastern-united-states-a-review-robert-j-brewer/
1
i

The Law of Nations and the

United States Constitution
ii
iii

The Law
of Nations and
the United States
Constitution
z
ANTHONY J. BELLIA JR.

BRADFORD R. CLARK

The Law of Nations and the United States Constitution. Anthony J. Bellia Jr. and Bradford
R. Clark. © Oxford University Press 2017. Published 2017 by Oxford University Press.
iv

1
Oxford University Press is a department of the University of Oxford. It furthers the
University’s objective of excellence in research, scholarship, and education by publishing
worldwide. Oxford is a registered trademark of Oxford University Press in the
UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2017

All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior permission in writing
of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed
with the appropriate reproduction rights organization. Inquiries concerning reproduction
outside the scope of the above should be sent to the Rights Department,
Oxford University Press, at the address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Library of Congress Cataloging-​in-​Publication Data

Names: Bellia, Anthony J. Jr., author. | Clark, Bradford R., author.
Title: The law of nations and the United States Constitution /​Anthony J. Bellia Jr.,
Bradford R. Clark.
Description: New York : Oxford University Press, [2017] | Includes bibliographical
references and index.
Identifiers: LCCN 2016039725 | ISBN 9780199841257 ((hardback) : alk. paper)
Subjects: LCSH: Constitutional law—​United States. | Customary law,
International.
Classification: LCC KF4550 .B373 2017 | DDC 342.73—​dc23 LC record available at
https://​lccn.loc.gov/​2016039725

1 3 5 7 9 8 6 4 2

Printed by Edwards Brothers Malloy, United States of America

Note to Readers
This publication is designed to provide accurate and authoritative information in regard to
the subject matter covered. It is based upon sources believed to be accurate and reliable and is
intended to be current as of the time it was written. It is sold with the understanding that the
publisher is not engaged in rendering legal, accounting, or other professional services. If legal
advice or other expert assistance is required, the services of a competent professional person
should be sought. Also, to confirm that the information has not been affected or changed
by recent developments, traditional legal research techniques should be used, including
checking primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com.
v

A.J. Bellia dedicates this book to his parents,

Anthony and Maureen Bellia,
and to Tricia, Kate, and Molly.

Bradford R. Clark dedicates this book to his parents,

Dr. John R. Clark and Dr. Anna Lydia Motto,
exemplary scholars, teachers, and mentors.
vi
vii

Contents

Acknowledgments ix
Introduction xi

PART ONE: The Traditional Law of Nations and the Constitution

1. The Law of Nations and the Constitution 3

2. The Law Merchant and the Constitution 19
3. The Law of State-​State Relations and the Constitution 41
4. The Law of State-​State Relations in Federal Courts 73
5. The Law Maritime and the Constitution 113

PART TWO: Modern Customary International Law

and the Constitution

6. Modern Customary International Law 139

7. The Inadequacy of Existing Theories of Customary
International Law and the Constitution 149
viii

viii Contents

PART THREE: Enforcement of Customary International

Law in U.S. Courts

8. Judicial Enforcement of Customary International Law

Against Foreign Nations 193
9. Judicial Enforcement of Customary International Law
Against the United States 213
10. Judicial Enforcement of Customary International Law
Against U.S. States 245

Conclusion 269
Index 273
ix

Acknowledgments

we owe a debt of gratitude to the many colleagues and students who

generously contributed their time and resources to this project. Before
writing this book, we wrote several articles that provided the foundation
upon which the book is built. These projects would not have been possible
without generous support from our respective institutions and the many
comments, suggestions, and questions that we received from colleagues
along the way.
At Notre Dame, we received generous support from Deans Nell
Newton and Patty O’Hara. At George Washington, we received generous
support from Deans Paul Schiff Berman and Blake Morant. We thank
them for the resources that made this book possible, and for their ongoing
encouragement.
We are also grateful to the many colleagues and friends who provided
comments and suggestions on the chapters of this book and/​or related
articles that preceded them, including Amy Barrett, Tricia Bellia, Paul
Berman, Curt Bradley, Paolo Carozza, Doug Cassel, Anthony Colangelo,
Michael Collins, Barry Cushman, Anthony D’Amato, Bill Dodge, Sam
Estreicher, Jean Galbraith, Rick Garnett, Jack Goldsmith, David Golove,
Philip Hamburger, John Harrison, Rick Hills, Duncan Hollis, Dan
Hulsebosch, Bill Kelley, Dan Kelly, Randy Kozel, James Lee, Tom Lee,
Renée Lerner, John Manning, Maeva Marcus, Mark McKenna, Jon Molot,
Henry Monaghan, David Moore, Trevor Morrison, Sean Murphy, John
Nagle, Jeff Pojanowski, Mike Ramsey, Jon Siegel, Linda Silberman, Ralph
Steinhardt, Paul Stephan, Ed Swaine, Jay Tidmarsh, Amanda Tyler, Carlos
Vázquez, Julian Velasco, Ingrid Wuerth, and Ernie Young. We are sure this
list is incomplete, but our gratitude to those we have neglected to mention
is no less.
We are especially grateful to Tricia Bellia, Barry Cushman, Philip
Hamburger, John Manning, Maeva Marcus, Mike Ramsey, and Carlos
x

x Acknowledgments

Vázquez, who both provided comments on chapters and prior articles and
gave us extensive comments on the book as a whole.
In addition, Notre Dame research librarians Chris O’Byrne and Patti
Ogden provided invaluable expert research assistance. We also had the
good fortune to work with several student research assistants on the book
and on the articles that preceded it. From George Washington, we thank
Jonathan Bond, Jarret Erickson, Michael Jones, Ben Kapnik, Ali Naini,
Scott Richardson, Heather Shaffer, Owen Smith, and Zach Tyree. From
Notre Dame, we thank Nick Curcio, Stephen DeGenaro, Sean Dudley,
Katie Hammond, John Lindermuth, Joseph Patterson, Erinn Rigney,
Marissa Wahl, Carolyn Wendel, and Krista Yee. We also extend our grati-
tude to Val Clark and for careful editing and proofreading.
xi

Introduction

In recent decades, judges, lawyers, and scholars have debated what

role customary international law should play in the domestic courts of the
United States. This question is of great importance to the United States, as
it is to all other nations. Every domestic legal system must choose whether
and how it will comply with its obligations under international law. Which
institutions have authority to decide these questions under the U.S.
Constitution remains contested. It is perhaps surprising that this ques-
tion is still open to debate—​well over two centuries after adoption of the
Constitution. One reason for the ongoing debate is that new rules of cus-
tomary international law emerged in the twentieth century that the found-
ers of the Constitution did not envision, and that they thus did not design
the Constitution to accommodate. As these rules emerged, the political
branches of the U.S. government—​namely, Congress and the President—​
took only limited steps to incorporate them into U.S. law. Eventually,
litigants began asking courts to incorporate such rules into U.S. law.
U.S. courts, however, have only limited jurisdiction and powers under
the Constitution relative to the political branches. Whether U.S. courts
have authority to incorporate customary international law into U.S. law
without adoption or authorization by the political branches turns on the
Constitution’s precise allocation of powers among courts, Congress, and
the President.
Much is at stake in these debates. Whether and how a domestic legal
system enforces customary international law has important implications
for foreign relations and human rights. Modern customary international
law seeks to protect fundamental human rights from governmental
violations—​a matter of almost universal concern among nations. At the
same time, how nations choose to enforce international obligations also
has significant consequences for human rights. Enforcement of custom-
ary international law against a foreign nation can generate conflict, with
xii

xii Introduction

potentially serious—​or even catastrophic—​human rights consequences.

The extent to which a nation attempts to enforce human rights against
other nations thus can involve a delicate balancing of competing human
rights considerations. The domestic enforcement of customary interna-
tional law also has deeper, systemic human rights implications. Stable and
democratic systems of government advance human self-​determination
(considered by many to be an important human right) and further the long-​
term protection of human rights generally. If one branch of government
oversteps its assigned role and performs a function assigned to another
branch—​including determining how to enforce international law—​it may
unsettle domestic checks and balances and ultimately undermine human
rights. It is no surprise, then, that questions regarding who decides how
the United States will comply with its obligations under international law,
and who decides how the United States will enforce international law
against other nations, continue to receive widespread attention.
Although academics have extensively considered the role of customary
international law in U.S. courts, U.S. courts themselves have avoided mak-
ing sweeping pronouncements about this role—​at least in recent decades.
This disconnect between theory and practice stems in part from the high
level of generality at which academics have framed the debate, and their
assumption that a unitary theory can account for all forms of customary
international law. The question of what role customary international law
plays in U.S. courts raises concrete issues regarding the proper alloca-
tion of powers in a constitutional structure that incorporates both separa-
tion of powers and federalism. Indeed, judges and scholars have generally
understood questions regarding the domestic enforcement of customary
international law to be constitutional questions—​informed by conventional
sources of constitutional meaning, including the constitutional text, his-
torical understandings, and judicial precedent. In determining the extent
of their own power relative to the political branches or the states, federal
judges typically treat these sources as relevant, if not determinative, con-
siderations in a range of contexts. Existing academic accounts of the role
of customary international law in U.S. courts rely heavily on historical
understandings and judicial precedent, but they characterize them at too
high a level of abstraction to provide a sufficiently nuanced analysis of the
constitutional questions presented.
This book offers a new lens through which academics, judges, political
actors, and anyone interested in constitutional governance in the United
States may examine the role and status of customary international law in
xiii

Introduction xiii

U.S. courts. This new lens, however, is also an old one (even if forgotten
for a time) insofar as it seeks to make better sense of the understandings,
practices, and precedents of the past. In particular, the book explains that
the law of nations has not interacted with the Constitution in any single
overarching way. Rather, the Constitution was designed to interact in dis-
tinct ways with each of the three traditional branches of the law of nations
that existed when it was adopted—​namely, the law merchant, the law of
state-​state relations, and the law maritime. By disaggregating how differ-
ent parts of the Constitution interacted with different kinds of interna-
tional law, the book provides an account of historical understandings and
judicial precedent that will help judges and scholars more readily identify
and resolve the constitutional questions presented by judicial use of cus-
tomary international law today.
The question of how customary international law relates to the
U.S. federal system continues to grow in importance. Over time, the politi-
cal branches have codified many norms of customary international law
as U.S. law. But certain traditional norms of customary international law
regarding the sovereignty of foreign nations remain uncodified in federal
law, even to this day. Whether and how courts enforce such norms absent
direction from Congress and the President are questions with serious
implications for both the foreign relations of the United States and the
proper role of the judiciary in the constitutional design. At the same time,
modern customary international law continues to evolve—​sometimes in
controversial ways—​to limit the authority of nations to govern their own
citizens in their own territory. Congress and the President have taken only
limited steps to incorporate or reject such rules in U.S. law, leaving the
status of many unclear in domestic law. This book, we hope, will help
judges, lawyers, political officials, scholars, and indeed anyone interested
in constitutional and international law, better understand the role and sta-
tus of customary international law in U.S. courts under the federal struc-
ture established by the Constitution of the United States.

I
The question of what role customary international law should play in
U.S. courts predates the Constitution and, indeed, shaped its drafting in
important respects. At present, there are three main theories regarding
the role of customary international law in U.S. courts. All three of these
theories take a one-​size-​fits-​all approach to the issue. In other words, all
xiv

xiv Introduction

start from the premise that every kind of customary international law has
the same status in U.S. courts—​no matter the nature of the rule in ques-
tion or the use to which a litigant seeks to put it. Some scholars maintain
that U.S. courts automatically may enforce all customary international law
as a form of federal law.1 This view is known as the modern position.
Others argue that U.S. courts may enforce no rule of customary interna-
tional law until the federal political branches adopt it in a federal statute
or treaty, or state officials adopt it as state law.2 This view is known as
the revisionist position. A third group recommends treating all forms of
customary international law as non-​preemptive general law.3 This view
is known as the intermediate position. None of these approaches fully
or accurately captures the more nuanced relationships that different
branches of the law of nations have had with distinct provisions of the
Constitution. In recent decades, the debate has intensified and remains
far from settled. This book offers an alternative approach grounded in
the Constitution’s design and structure. Although the Supreme Court of
the United States has largely avoided taking sides in the current debate, it
has decided numerous cases since the founding that bear on these issues.
These decisions are not only consistent with, but also implement, this
structural approach.
The participants in the current debate rely primarily upon historical
understandings and judicial precedent to support their respective posi-
tions. All agree that history and precedent are relevant to resolving this
debate, if not determinative of it. Thus far, however, the debate has failed
to consider the full historical and constitutional background relevant to

1. See, e.g., Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International
Law, 1994 Sup. Ct. Rev. 295, 295; Louis Henkin, International Law as Law in the United States,
82 Mich. L. Rev. 1555, 1555 (1984); Harold Hongju Koh, Is International Law Really State
Law?, 111 Harv. L. Rev. 1824, 1826–​27 (1998); Beth Stephens, The Law of Our Land: Customary
International Law as Federal Law After Erie, 66 Fordham L. Rev. 393, 397 (1997). This view is
known as the modern position, and it is discussed in detail in Chapter 7.
2. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal
Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 870 (1997); A.M.
Weisburd, State Courts, Federal Courts, and International Cases, 20 Yale J. Int’l L. 1, 2 (1995);
Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665,
716 (1986). This view is known as the revisionist position, and it is also discussed in detail
in Chapter 7.
3. See, e.g., Michael D. Ramsey, The Constitution’s Text in Foreign Affairs 342–​61
(2007); Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 Va.
J. Int’l L. 365, 369–​70 (2002). This view is known as the intermediate position, and it is
discussed in Chapter 7.
xv

Introduction xv

the question. In keeping with the terms of the current debate, this book
examines the text and structure of the Constitution, historical understand-
ings of them, and judicial precedent on the status of customary interna-
tional law in U.S courts under the Constitution. This examination reveals
that the Constitution does not provide a unitary approach to the status of
customary international law in U.S. courts. Rather, the status of such law
under the Constitution depends upon the kind of international obligation
at issue and how a litigant is asking a court to use it.
The key to understanding the status of customary international law in
U.S. courts is to identify how distinct types of international obligations
interact with specific provisions of the Constitution and the structure of
government they create. Accordingly, this book offers an alternative to
current approaches to customary international law in U.S. courts—​an
approach that determines the status of each kind of customary interna-
tional law in U.S. courts on the basis of its distinct interactions with the
Constitution’s design and structure.
At the founding, the law of nations—​the predecessor to customary
international law—​consisted of three major branches: the law merchant,
the law of state-​state relations, and the law maritime.4 The founders were
familiar with these different branches and consciously designed the
Constitution to interact with each branch in distinct ways. Thus, the ques-
tion of how customary international law originally fit into the U.S. legal
system presents not one question, but at least three. To answer these ques-
tions, it is necessary to disaggregate the different historical categories of
international law and then determine how each has interacted with the
U.S. constitutional scheme.

4. See 4 William Blackstone, Commentaries *66–​67; Edwin D. Dickinson, The Law of

Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 26–​29 (1952); see
also Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary
L. Rev. 655, 660 (2013) [hereinafter Bellia & Clark, General Law in Federal Court]. In addition,
the law of nations was sometimes thought to include other related doctrines such as conflict
of laws and enforcement of judgments. See Randall Bridwell & Ralph U. Whitten, The
Constitution and the Common Law: The Decline of the Doctrines of Separation of
Powers and Federalism 51 (1977) (describing admiralty, commercial law, and conflict of laws
as comprising the law of nations); David L. Sloss, Michael D. Ramsey & William S. Dodge,
International Law in the Supreme Court to 1860, in International Law in the U.S. Supreme
Court: Continuity and Change 7, 8, 29 (David L. Sloss, Michael D. Ramsey & William
S. Dodge eds., 2011) (describing different topics covered by law of nations); Stewart Jay, The
Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 821–​22 (1989)
(describing law merchant, law maritime, conflict of laws principles, and “law governing the
relations between states” as comprising the law of nations).
xvi

xvi Introduction

Once one understands the precise—​ and distinct—​ ways in which

the Constitution was designed to take account of the three traditional
branches of the law of nations, one is in a better position to evaluate the
status of modern customary international law under the Constitution
today. Modern customary international law did not exist at the founding,
and it differs in fundamental respects from each traditional branch of the
law of nations. Thus, it is not possible to determine the status of modern
customary international law simply by analogy to how the Constitution
has interacted with any or all of the three traditional branches of the law
of nations. Rather, any attempt to determine the status of modern cus-
tomary international law under the Constitution requires a careful evalu-
ation of how such law itself interacts with the precise provisions of the
Constitution and the structure of government it created.

II
The law of nations played a crucial role in shaping the United States from
its inception. In the Declaration of Independence, the British colonies
in North America invoked the law of nations when they declared them-
selves to be “Free and Independent States,” entitled to the rights of sover-
eigns under such law, including “full Power to levy War, conclude Peace,
contract Alliances, establish Commerce, and to do all other Acts and
Things which Independent States may of right do.”5 Following the War of
Independence, Great Britain “acknowledge[d]‌the said United States … to
be free sovereign and independent states” in the Treaty of Paris that ended
the war.6 “Free and independent states” was not a novel phrase unknown
to the drafters of the Declaration of Independence and the Treaty of Paris.
Rather, the concept of a “free and independent” state came from the law
of nations. The founders’ use of this phrase indicated that they sought for
the fledgling United States all of the sovereign rights and obligations that
accompanied that status under the law of nations.
The founders’ experience under the Articles of Confederation brought
home to them the importance of the law of nations to the survival of the
United States. During this period, U.S. states notoriously violated the law
of nations, and Congress was all but powerless to prevent or redress such

5. The Declaration of Independence para. 32 (U.S. 1776).

6. Definitive Treaty of Peace Between the United States of America and his Britannic Majesty,
Eng.-​U.S., Sept. 3, 1783, 8 Stat. 80.
xvii

Introduction xvii

violations. State violations of the law of nations posed serious threats to

the peace and prosperity of the United States as a whole. When a state vio-
lated the law of nations—​by, for example, violating the Treaty of Peace with
Great Britain—​the violation was attributable to the entire nation. Thus,
state violations of the law of nations gave offended nations just cause to
retaliate against the United States as a whole. States also threatened to deter
international trade and commerce by discriminating against foreigners in
state court proceedings. Many leading members of the founding genera-
tion became convinced that the United States needed a new Constitution
in order both to prevent war and to foster economic prosperity.7
Accordingly, in adopting the Constitution, the founders gave the leg-
islative, executive, and judicial branches of the federal government dis-
tinct responsibilities in relation to each branch of the law of nations. In
this way, the founders designed the Constitution to ensure that the United
States could both comply with its obligations under the law of nations and
reap the benefits of such law in its interactions with foreign nations and
their subjects or citizens. To understand the precise ways in which they
designed the Constitution to achieve these objectives, it is necessary to
understand the nature of each branch of the law of nations known to the
founders.
The law merchant, sometimes known as general commercial law, was a
shared body of law—​variously described as based on custom and reason—​
that the courts of different nations (and U.S. states) jointly administered in
order to facilitate international (and interstate) transactions among mer-
chants.8 Nations (and U.S. states) incorporated the law merchant into their
municipal law for their mutual benefit, and applied it widely to commer-
cial transactions in order to encourage trade across borders.
The law of state-​state relations referred to a set of rights and obligations
that governed interactions between sovereign states.9 This branch of the
law of nations was of central importance to the founders because it deter-
mined matters of war and peace. Respect for the rights and obligations
of sovereign states was essential to maintaining peace and facilitating

7. James Madison, Vices of the Political System of the United States (Apr. 1787), reprinted
in 9 The Papers of James Madison 345, 349 (Robert A. Rutland & William M.E. Rachal eds.,
1975); 1 The Records of the Federal Convention of 1787, at 24–​25 (Max Farrand ed., 1911)
(statement of Edmund Randolph).
8. See 1 Blackstone supra note 4, at *75, *273.
9. See Dickinson, supra note 4, at 26–​29.
xviii

xviii Introduction

friendly relations between nations (and their citizens). A nation’s most

important rights at the time of the founding were known as “perfect
rights.”10 These included the rights to enjoy liberty peaceably, to neutral
use of the high seas, to conduct diplomatic relations, and to govern its own
citizens in its own territory.11 Nations generally followed the law of state-​
state relations because it was in their mutual interest to do so. Violation
of one nation’s perfect rights by another nation gave the offended nation
just cause to retaliate, including by waging war. Accordingly, in the late
eighteenth century, English courts generally followed the law of state-​state
relations (incorporated as part of the common law) and left any decision to
depart from such law to political officials authorized to exercise the politi-
cal authority of the nation.
The law maritime shared certain features with both the law merchant
and the law of state-​state relations. The law maritime was sometimes used
to describe certain aspects of the law of state-​state relations, such as the
law of prize and other rules that admiralty courts applied to determine the
respective rights of nations in their use of the high seas. In other respects,
the law maritime—​like the law merchant—​governed certain private com-
mercial transactions. Whereas the law merchant governed transactions
on land, the law maritime governed transactions on the high seas and
within the ebb and flow of the tide.12 For all such commercial transac-
tions, application of a uniform body of general law encouraged people
from different nations (and U.S. states) to engage in commerce across
borders.
Given the importance of all three branches of the law of nations to
the peace and prosperity of the United States, it is not surprising that
numerous provisions of the Constitution were designed to interact with
the background legal frameworks provided by the law merchant, the law
of state-​state relations, and the law maritime. For this reason, it is not pos-
sible to understand the original meaning and function of these constitu-
tional provisions without reference to the law of nations as it existed at the
time they were adopted.

10. See Anthony J. Bellia Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109
Colum. L. Rev. 1, 11 (2009) [hereinafter Bellia & Clark, Federal Common Law of Nations].
11. Id.
12. See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of
1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984) (describing the law
merchant and the law maritime).
xix

Introduction xix

The founders used a variety of distinct means to enable the United

States both to comply with the law of nations and to enforce it against
other nations. Not all of these means are obvious to modern readers. The
founders wrote the Constitution in language familiar to informed read-
ers of their time, and some of this language has fallen into disuse. In
context, however, the language they employed clearly conveyed important
associations between the Constitution’s provisions and the law of nations.
Indeed, these associations were too plain to require additional explanation
at the time. The Constitution mentions the phrase “Law of Nations” only
once (in the Offences Clause),13 but modern readers should not be misled
to think that the Constitution was otherwise silent on the role of the law
of nations in the federal system. Read against the relevant background
context, numerous provisions of the Constitution have more to say about
the role of the law of nations in U.S. courts than the modern reader ini-
tially may perceive. This frame of reference was so well established that
it did not warrant explicit mention; its situational relevance would have
been readily apparent to educated lawyers of the era. Taken together, the
provisions implicating the law of nations carefully allocated responsibility
among the federal branches of government both to ensure compliance
with the three traditional branches of such law and, when necessary, to
demand compliance from other nations.
The most important of these constitutional provisions concerned the
law of state-​state relations. How the United States handled this law directly
affected matters of war and peace. Accordingly, the Constitution consoli-
dated power in the federal political branches to deal with such matters. The
Constitution authorized Congress and the President to undertake numer-
ous actions—​most exclusive of state interference—​that were necessary to
conduct foreign relations in accordance with the law of state-​state relations
and to prevent or initiate war. Many of the constitutional provisions allo-
cating these powers used terms and concepts drawn directly from the law
of nations. Among other things, Article I empowered Congress to regulate
commerce with foreign nations; to establish a uniform rule of naturaliza-
tion; to regulate the value of foreign coin; to define and punish piracies
and felonies committed on the high seas, and offenses against the law
of nations; to declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water; to raise and support armies;

13. U.S. Const. art. I, § 8, cl. 10 (granting Congress power to define and punish “Offences
against the Law of Nations”).
xx

xx Introduction

to provide and maintain a navy; to make rules for the government and
regulation of the land and naval forces; to provide for calling forth the
militia to repel invasions; and to provide for organizing, arming, and dis-
ciplining the militia.14
Likewise, the Constitution empowered the President to take various
actions relating to the law of state-​state relations. For example, Article II
provided that the President shall be commander in chief of the army and
navy of the United States, and of the militia of the several states, when
called into the actual service of the United States; shall have power, by and
with the advice and consent of the Senate, to make treaties, provided two-​
thirds of the senators present concur; shall nominate, and by and with the
advice and consent of the Senate, shall appoint ambassadors, other public
ministers and consuls; and shall receive ambassadors and other public
ministers.15
In addition to enabling Congress and the President to conduct foreign
relations and decide matters of war and peace, the Constitution enlisted
the federal judiciary to apply the law of nations as a set of default rules in
certain types of cases. Although the founders did not grant federal courts
unlimited jurisdiction to hear cases arising under the law of nations,
Article III gave federal courts subject matter jurisdiction over several spe-
cific categories of cases and controversies likely to implicate the law of
nations as then understood. This jurisdiction extended to cases arising
under treaties (the law of state-​state relations); cases affecting ambassa-
dors, other public ministers and consuls (the law of state-​state relations);
cases of admiralty and maritime jurisdiction (the law of state-​state rela-
tions and the law maritime); controversies between citizens of different
states (the law merchant); and controversies between a state, or the citi-
zens thereof, and foreign states, citizens or subjects (the law merchant and
the law of state-​state relations).16
The Constitution’s allocation of powers to the political branches of the
federal government—​as designed at the founding and as understood by
the Supreme Court in practice—​has generally determined how U.S. courts
have treated the law of state-​state relations in cases falling within their
jurisdiction. This allocation of powers has produced two overarching

14. Id. art. I, § 8.

15. Id. art. II.
16. Id. art. III, § 2.
xxi

Introduction xxi

default rules that have guided judicial decision-​ making throughout

U.S. history. First, the Constitution’s exclusive allocation of powers to the
political branches to recognize foreign nations has been understood to
require courts and U.S. states to uphold the rights of recognized foreign
nations under the law of state-​state relations. If a court failed to uphold
the rights of a recognized foreign sovereign under such law, it would have
negated the domestic effect of the political branches’ decision to recognize
that nation as a sovereign with all the rights that accompanied that status
under the law of state-​state relations. Under this constitutional allocation
of powers, a court or state could no more deny a recognized nation the
benefits and incidents of recognition than it could rescind recognition
itself on behalf of the United States. Moreover, a court or a state that vio-
lated the rights of a recognized foreign nation under the law of state-​state
relations historically would have given the offended nation just cause to
wage war against the United States. Such action would have run counter
to the Constitution’s decision to give the political branches, rather than
courts or states, the power to determine if, when, and how the United
States would go to war.
Second, by assigning the reprisal, capture, and war powers exclusively
to the political branches, the Constitution required courts and U.S. states
to refrain from attempting to hold foreign nations accountable for their
violations of the law of nations. In the eighteenth century, a nation could
use a variety of accepted means to pursue redress against another for
violating the law of nations, including diplomacy, espousal, retorsion,
reprisals, captures, and war. The Constitution’s allocation of authority to
perform these functions exclusively to the political branches gave them
the sole power to decide whether, when, and how the United States would
hold another nation accountable for violating the law of nations. Given this
constitutional allocation of powers, courts and states could no more use
judicial decrees to attempt to coerce foreign actors to make reparations for
violating the law of nations than they could issue formal letters of marque
and reprisal or authorize captures in response to such actions. To the con-
trary, the Constitution authorized the political branches—​and the political
branches alone—​to deploy the standard means by which nations sought
redress from one another for violating the law of state-​state relations.
Taken together, these two judicial default rules reflected the
Constitution’s exclusive allocation of authority to the political branches
to decide whether the United States would confer, withdraw, or limit the
incidents of recognition, and whether the United States would pursue
xxii

xxii Introduction

redress against a recognized foreign nation for violating the United States’
or another nation’s rights under the law of nations.
The Constitution, by design, interacted quite differently with the
law merchant. Federal courts applied the law merchant not because the
Constitution’s allocation of powers to the political branches in Articles
I and II required them to do so, but rather because the Judiciary Act and the
Process Acts authorized them to do so in the exercise of their Article III judi-
cial power to hear controversies between citizens of different U.S. states or
between citizens or subjects of a foreign nation and citizens of a U.S. state.
In exercising such diversity jurisdiction, federal courts had power to apply
the law merchant so long as state courts would apply it in deciding analo-
gous cases under state law. In Erie Railroad Co. v. Tompkins,17 the Supreme
Court held, in accord with early practice, that federal courts had no power
to apply the law merchant if state courts would not apply it under state law.
Thus, state law ultimately determined whether federal courts would apply
the law merchant as a substantive rule of decision to cases within their
jurisdiction. In contrast, the Constitution determined whether and how
federal courts (and state courts) would apply the law of state-​state relations.
Federal courts originally applied the law maritime for a hybrid set of
reasons. The Constitution’s allocation of powers determined whether and
how federal courts would decide an important category of maritime dis-
putes governed by the law of state-​state relations—​most notably, prize
cases. In contrast, Article III’s grant of admiralty and maritime jurisdic-
tion permitted federal courts to apply the private law maritime to more
routine maritime disputes. In the twentieth century, the Supreme Court
held that this particular grant of Article III jurisdiction incorporated the
private law maritime as federal law. This holding gave uncodified mari-
time law a unique status in U.S. courts as compared to the law of state-​
state relations and the law merchant.
The distinct rules of modern customary international law that emerged
in the twentieth century are not analogous to any of the three traditional
branches of the law of nations, and thus cannot be assumed to interact
with the Constitution in any of the distinct ways in which the traditional
branches do. The feature of modern customary international law that dis-
tinguishes it from the traditional branches of the law of nations is that
it provides rules governing how nations must treat their own citizens in

17. 304 U.S. 64 (1938).

xxiii

Introduction xxiii

their own territory. This kind of obligation is far removed from the kind
of commercial transactions that the law merchant governed. It also (typi-
cally) has little relevance to matters arising on or relating to the high seas,
subject to the law maritime. Moreover, the obligations imposed by modern
customary international law on the internal governance of nations depart
from a basic premise of the law of state-​state relations—​namely, that each
nation enjoyed the right to govern its own citizens within its own territory.
Because of these differences between modern customary international
law and the traditional branches of the law of nations, it is not possible to
ascertain the role or status of customary international law in U.S. courts
simply by analogizing it to one of those traditional branches.
That modern customary international law creates international obliga-
tions does not in itself determine its domestic effect in U.S. courts. The
law merchant, the law of state-​state relations, and the law maritime were
all based in large measure on international custom and practice at the
founding. But each of these branches of the law of nations had its own
distinct role and status in U.S. courts, depending in part on the context
in which a litigant sought to enforce it. The existence of an international
obligation has never been enough to establish an enforceable legal obliga-
tion in a U.S. court. Instead, the Supreme Court has determined the role
of the law of nations—​or customary international law—​in U.S. courts on
the basis of the specific kind of rule involved, the relationship between the
rule and various constitutional provisions, and the context in which the
litigant sought to enforce it.
Even if modern customary international law were truly analogous to the
traditional law of state-​state relations—​as proponents of the modern posi-
tion claim—​an independent constitutional evaluation would still be neces-
sary to determine whether and how it applies in U.S. courts. U.S. courts
have never applied the law of state-​state relations reflexively regardless of
the rule asserted or the context involved. In particular, while U.S. courts
traditionally have upheld the rights of recognized foreign sovereigns under
the law of state-​state relations, they have never taken the lead in enforcing
obligations of such sovereigns under the law of state-​state relations against
other nations or their officials.
Ultimately, the status of any particular rule of customary international
law in U.S. courts depends on how the application of that rule interacts, in
context, with the Constitution and the structure of government it created.
In examining the relationship between customary international law and
the Constitution, it is useful to make two key distinctions.
xxiv

xxiv Introduction

Initially, it is useful to distinguish judicial application of customary

international law to enforce the rights of recognized foreign nations from
judicial application of such law to constrain the conduct of foreign nations.
Courts traditionally applied customary international law to enforce the
rights of recognized foreign nations in order to uphold the Constitution’s
allocation of the recognition power to the federal political branches. On
the other hand, courts have declined to apply customary international law
against recognized foreign nations in order to preserve the exclusive con-
stitutional authority of the political branches to decide whether, when, and
how to hold foreign nations accountable for their violations of such law.
Moreover, it is useful to distinguish judicial enforcement of custom-
ary international law against foreign nations from judicial enforcement
against the United States and its constitutent states. Today, litigants some-
times seek judicial enforcement of customary international law not only
against foreign nations, but also against domestic actors. Thus, judicial
application of customary international law in U.S. courts may take three
different forms. First, litigants may ask courts to apply customary interna-
tional law against foreign nations, governments, or officials to hold them
accountable for their actions. Second, litigants may ask courts to apply
such law to constrain or redress the conduct of the United States or its
officials. Third, litigants may ask courts to apply customary international
law to constrain or redress the conduct of U.S. states, governments, or
officials. Each application involves somewhat different constitutional con-
siderations, and this book will examine all three from the founding to the
present.18

III
Part I of this book describes the three traditional branches of the law of
nations and examines their relationship with the Constitution. Part II
describes the emergence of modern customary international law in the

18. Parts of this book draw and build on some of our prior work, including Anthony J. Bellia
Jr. & Bradford R. Clark, The Original Source of the Cause of Action in Federal Courts: The
Example of the Alien Tort Statute, 101 Va. L. Rev. 609, 631–​37 (2015); Bellia & Clark, General
Law in Federal Court, supra note 4; Anthony J. Bellia Jr. & Bradford R. Clark, The Law of
Nations as Constitutional Law, 98 Va. L. Rev. 729 (2012); Anthony J. Bellia Jr. & Bradford R.
Clark, The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011); Anthony J.
Bellia Jr. & Bradford R. Clark, The Political Branches and the Law of Nations, 85 Notre Dame
L. Rev. 1795 (2010); Bellia & Clark, Federal Common Law of Nations, supra note 10.
xxv

Introduction xxv

twentieth century, considers how it differs from the traditional branches of

the law of nations, and explains why determining its status in U.S. courts
requires an independent, context-​specific analysis of its interaction with
the Constitution. Part III assesses how both modern and traditional cus-
tomary international law interact with the Constitution in three distinct
contexts.
Part I of the book consists of Chapters 1 through 5, and examines how
the traditional branches of the law of nations have interacted with the
Constitution throughout U.S. history.
Chapter 1 provides essential background by briefly describing the law
of nations as it existed in the late eighteenth century, and outlining the
ways in which the founders designed the Constitution to interact with
each of its three main branches. The next four chapters discuss in detail
how courts have understood the Constitution to interact with each branch
of the law of nations from the founding to the present.
Chapter 2 considers the Constitution’s treatment of the law merchant.
Article III of the Constitution extended federal judicial power to contro-
versies between citizens of different states, and controversies between citi-
zens of U.S. states and foreign citizens or subjects—​collectively known as
“diversity of citizenship” cases. At the time, the most important category of
diversity cases involved disputes between merchants. Accordingly, in the
decades following ratification, federal courts (like their state counterparts)
applied the law merchant as general law in cases within their jurisdiction,
and never more famously than in Swift v. Tyson.19 In such cases, however,
early federal courts did not apply the law merchant as a form of federal law,
or even use it to disregard local state law. To the contrary, the Swift Court
explained that federal courts applied the law merchant when state courts
would do the same, and acknowledged that federal courts should forgo
application of the law merchant when state statutes or fixed local customs
established a different rule.
In the late eighteenth and early nineteenth centuries, however, the
Supreme Court transformed Swift into the “the Swift doctrine” by expand-
ing the traditional realm of general law and disregarding contrary local state
common law. During the same period, states increasingly localized the law
merchant. In light of these developments, the law applied by federal courts
in diversity cases at the end of the nineteenth century often differed from

19. 41 U.S. (16 Pet.) 1 (1842).

xxvi

xxvi Introduction

the law applied by state courts in similar non-​diverse cases. The Supreme
Court eliminated this disparity in Erie Railroad Co. v. Tompkins20 by inter-
preting the Constitution to require federal courts to follow all forms of state
law rather than their own conceptions of general law (in the absence of a
controlling provision of supreme federal law). Thus, the Court held that,
absent an applicable provision of the Constitution or an act of Congress,
the Constitution recognized residual state authority to determine whether
general law or state law would provide the applicable rule of decision in
cases that fell within the concurrent or exclusive authority of the states.
Importantly, however, Erie did not foreclose federal courts from apply-
ing other kinds of general law—​such as the law of state-​state relations—​to
matters within the exclusive regulatory authority of the federal govern-
ment, particularly matters within the foreign relations authority of
the political branches. Indeed, the Supreme Court has found that the
Constitution’s exclusive allocation of foreign relations powers to the fed-
eral political branches sometimes requires federal courts to apply rules
derived from the law of state-​state relations. When the Constitution itself
requires the application of such law, Erie poses no barrier. To the contrary,
Erie expressly acknowledged that federal courts may disregard state law
in matters governed by the Constitution. Accordingly, federal courts have
applied the law of state-​state relations since the founding when necessary
to uphold the Constitution’s exclusive allocation of recognition and other
foreign relations powers to the political branches in Articles I and II.
Chapter 3 considers the relationship between the Constitution and
the law of state-​state relations. The Constitution empowered the politi-
cal branches of the federal government to recognize foreign nations, and
thereby commit the United States as a whole to respect their rights under
the law of state-​state relations. The Constitution’s allocation of the recogni-
tion power to the political branches requires courts and states to uphold the
rights of recognized foreign nations because failure to do so would contra-
dict the decision to recognize those nations. Additionally, the Constitution
gave the political branches exclusive authority to decide whether, when,
and how to hold foreign nations accountable for their violations of the law
of nations. Specifically, Articles I and II of the Constitution gave the politi-
cal branches exclusive authority to pursue satisfaction from other nations
through diplomacy or, failing that, to issue reprisals, authorize captures,

20. 304 U.S. 64 (1938).

xxvii

Introduction xxvii

or declare and make war. Because the Constitution vested these powers
exclusively in the political branches, neither courts nor states can seek
redress against foreign nations on their own without usurping the political
branches’ constitutional authority.
Chapter 4 considers in detail the Supreme Court’s treatment of the
law of state-​state relations—​both before and after Erie. Since the found-
ing, courts have applied traditional rules governing the rights and obliga-
tions of sovereign states not as a consequence of any specific jurisdictional
grant, but when necessary to uphold both the Constitution’s allocation
of powers to the political branches and the political branches’ exercise of
those powers. Because the Constitution gave the political branches exclu-
sive authority to recognize foreign nations, courts have upheld the rights
of foreign sovereigns under the law of state-​state relations as an incident
of recognition. Had courts disregarded the rights of foreign nations under
such law, they would have contradicted the political branches’ decision to
recognize those nations as equal and independent sovereigns, and also—​
for much of U.S. history—​risked war against the United States. At the
same time, courts have refrained from attempting to hold foreign nations
accountable for violations of international law out of respect for the politi-
cal branches’ exclusive authority to decide whether, when, and how to pur-
sue redress against other nations.
Chapter 5 considers the Supreme Court’s treatment of the law mar-
itime. For more than a century, federal courts exercising admiralty and
maritime jurisdiction applied the private law maritime as non-​binding
general law, much as they applied general commercial law under the Swift
doctrine. Two decades before Erie repudiated general law in diversity cases,
however, the Court interpreted Article III’s grant of admiralty and mari-
time jurisdiction to incorporate the general law maritime as federal law.
This decision served to carve out admiralty and maritime law as a unique
enclave of federal common law authorized by Article III.
Part II of the book—​consisting of Chapters 6 and 7—​describes the
emergence of modern customary international law in the twentieth cen-
tury and explains how such law differs from the traditional branches of the
law of nations. It then proceeds to explain why the relationship between
modern customary international law and the Constitution is not analo-
gous to the distinct relationships that each of the traditional branches of
the law of nations have with the Constitution.
Chapter 6 describes how a new kind of customary international
obligation—​modern customary international law—​emerged during the
xxviii

xxviii Introduction

twentieth century, and how this kind of obligation differs from the three
traditional branches of the law of nations known to the founders. The
three main branches of the law of nations governed how nations or their
citizens interacted with other nations or their citizens. A distinctive fea-
ture of modern customary international law is that it seeks to regulate how
nations treat their own citizens within their own territory. Such law is dif-
ferent in kind from the traditional branches of the law of nations known
to the founders—​and indeed contradicts certain basic principles of the law
of nations as they existed in 1789. Because this kind of international obli-
gation did not exist when the Constitution was adopted, the Constitution
contains no provisions specifically designed or readily available to facili-
tate its application in U.S. courts.
In light of this background, Chapter 7 discusses three current theories
regarding the status of customary international law in U.S. courts, and
explains why none provides a complete or accurate account of how such
law interacts with the Constitution. Proponents of what is known as the
“modern position” advocate that U.S. courts should incorporate all rules
of customary international law—​including modern rules—​as federal law.
In other words, they argue that all forms of customary international law
automatically qualify as federal common law capable of preempting state
law. Proponents of what is known as the “revisionist position” advocate
that U.S. courts should never incorporate any form of customary interna-
tional law as federal law unless the political branches affirmatively adopt
it in the exercise of their constitutional powers. In other words, they argue
that customary international law can never preempt state law unless the
federal political branches adopt it in a statute or a treaty. Proponents of the
“intermediate position” advocate judicial application of customary inter-
national law as non-​binding general law, not federal law. Specifically, they
argue that courts should apply customary international law as a kind of
pre-​Erie general law incapable of preempting state law.
All of these positions seek to apply a one-​size-​fits-​all approach to the
status of customary international law in U.S. courts. All three positions
make a simple category mistake, however, in attempting to ground the
role of modern customary international law in U.S. courts on precedent
dealing with very different forms of international law. For example, pro-
ponents of the modern position have mistakenly equated modern custom-
ary international law with the law of state-​state relations—​an important
subset of the law of nations—​that the Constitution’s specific allocation
of powers required courts and states to uphold. Similarly, proponents
Another random document with
no related content on Scribd:
Grishkin is nice; her Russian eye
Is underlined for emphasis;
Uncorseted, her friendly bust
Gives promise of pneumatic bliss.

The couched Brazilian jaguar

Compels the scampering marmoset
With subtle effluence of cat;
Grishkin has a maisonette:

The sleek and sinuous jaguar

Does not in his arboreal gloom
Distil so rank a feline smell
As Grishkin in a drawing-room.

And even abstracter entities

Circumambulate her charm;
But our lot crawls between dry ribs
To keep its metaphysics warm.
 THE HIPPOPOTAMUS
Similiter et omnes revereantur Diaconos, ut
mandatum Jesu Christi; et Episcopum, ut
Jesum Christum, existentem filium Patris;
Presbyteros autem, ut concilium Dei et
Conjunctionem Apostolorum. Sine his Ecclesia
non vocatur; de quibus suadeo vos sic habeo.

S. Ignatii Ad Trallianos.
And when this epistle is read among you,
cause that it be read also in the church of the
Laodiceans.

he broad
backed
hippopotamus
Rests on his
belly on the
mud;
Although he
seems so firm
to us
He is merely
flesh and
blood.

Flesh-and-
blood is weak
and frail,
Susceptible
to nervous
shock;
While the True Church can never fail
For it is based upon a rock.

The hippo’s feeble steps may err

In compassing material ends,
While the True Church need never stir
To gather in its dividends.

The potamus can never reach

The mango on the mango tree;
But fruits of pomegranate and peach
Refresh the Church from over sea.

At mating time the hippo’s voice

Betrays inflexions hoarse and odd,
But every week we hear rejoice
The Church, at being one with God.

The hippopotamus’s day

Is past in sleep; at night he hunts;
God works in a mysterious way
The Church can sleep and eat at once.

I saw the potamus take wing

Ascending from the damp savannas,
And quiring angels round him sing
The praise of God in loud hosannas.

Blood of the Lamb shall wash him clean

And him shall heavenly arms enfold,
Among the saints he shall be seen
Performing on a harp of gold.

He shall be washed as white as snow,

By all the martyr’d virgins kist,
While the True Church remains below
Wrapt in the old miasmal mist.
 A COOKING EGG
En l’an trentiesme de mon aage
Que toutes mes hontes j’ay beues...

ipit sate upright

in her chair
Some distance
from where I
was sitting;
Views of the
Oxford
Colleges
Lay on the
table with the
knitting.

Daguerrotypes
and silhouettes,
Her
grandfather
and great great
aunts,
Supported on the mantelpiece
An Invitation to the Dance.

I shall not want Honour in Heaven

For I shall meet Sir Philip Sidney
And have talk with Coriolanus
And other heroes of that kidney.

I shall not want Capital in Heaven

For I shall meet Sir Alfred Mond:
We two shall lie together, lapt
In a five per cent Exchequer Bond.

I shall not want Society in Heaven

Lucretia Borgia shall be my Bride;
Her anecdotes will be more amusing
Than Pipit’s experience could provide.

I shall not want Pipit in Heaven:

Madame Blavatsky will instruct me
In the seven Sacred Trances;
Piccarda de’ Donati will conduct me....

But where is the penny world I bought

To eat with Pipit behind the screen?
The red-eyed scavengers are creeping
From Kentish Town and Golder’s Green;

Where are the eagles and the trumpets?

Buried beneath some snow-deep Alps.

Over buttered scones and crumpets
Weeping, weeping multitudes
Droop in a hundred A. B. C.’s.
 LUNE DE MIEL
ls ont vu les
Pays-Bas, ils
rentrent á Terre
Haute;
Mais une nuit
d’été, les voici
à Ravenne,
A l’aise entre
deux draps,
chez deux
centaines de
punaises;
La sueur
estivale, et une
forte odeur de
chienne.
Ils restent sur
le dos écartant
les genoux
De quatre jambes molles tout gonflées de morsures.
On relève le drap pour mieux égratigner.
Moins d’une lieue d’ici est Sainte Apollinaire
In Classe, basilique connue des amateurs
De chapitaux d’acanthe que tournoie le vent.

Ils vont prendre le train de huit heures

Prolonger leurs misères de Padoue à Milan
Où se trouvent le Cène, et un restaurant pas cher.
Lui pense aux pourboires, et rédige son bilan.
Ils auront vu la Suisse et traversé la France,
Et Sainte Apollinaire, raide et ascétique,
Vieille usine désaffectée de Dieu, tient encore
Dans ses pierres écroulantes la forme précise de Byzance.
 DANS LE RESTAURANT
e garçon
délabré qui n’a
rien à faire
Que de se
gratter les
doigts et se
pencher sur
mon épaule:
“Dans mon
pays, il fera
temps pluvieux,
Du vent, du
grand soleil et
de la pluie;
C’est ce qu’on
appelle le jour
de lessive des
gueux.”
(Bavard, baveux, à la croupe arrondie,
Je t’en prie, au moins, ne bave pas dans la soupe.)
“Les saules tout trempés, et des bourgeons sur les ronces—
C’est là, dans une averse, qu’on s’abrite.
J’avais sept ans, elle était plus petite.
Elle était toute mouillée, je lui ai donné des primevères.”
Les tâches de son gilet montent au chiffre de trente-huit.
“Je la chatouillais, pour la faire rire.
Elle avait une odeur fraîche qui m’était inconnue,—”

Mais alors, vieux lubrique—

“Monsieur, le fait est dur,

Il est venu, nous péloter, un gros chien,
 Moi j’avais peur, je l’ai quittée à mi-chemin;
C’est dommage.”

Mais alors, tu as ton vautour.

Va-t’en te décrotter les rides du visage;
Tiens, ma fourchette, décrasse-toi le crâne,
De quel droit paies-tu des expériences comme moi?
Tiens, voilà dix sous, pour la salle-de-bain.

Phlébas, le Phénicien, pendant quinze jours noyé,

Oubliait le cri des mouettes et la houle de Cornouaille,
Et les profits et les pertes, et la cargaison d’étain;
Un courant de sous-mer l’emporta très loin,
Le repassant aux étapes de sa vie antérieure.
Figurez-vous donc, c’était un sort pénible.
Cependant, ce fut jadis un bel homme, de haute taille.
 LE SPECTATEUR
alheur à
malheureuse
Tamise!
Qui coule si
pres du
Spectateur.
Le directeur
Du
Spectateur
Empeste la
brise.
Les
actionnaires
Réactionnair
es
Du
Spectateur
Conservateur
Bras-dessus bras-dessous
Font des tours
A pas de loup.
Dans un égout
Une petite fille
En guenilles
Camarde
Regarde
Le directeur
Du Spectateur
Conservateur
Et crève d’amour.
MÉLANGE ADULTÈRE DE TOUT
n Amérique,
professeur;
En Angleterre,
journaliste;
C’est à grands
pas et en sueur
Que vous
suivrez à peine
ma piste.
En Yorkshire,
conférencier;
A Londres,
un peu
banquier;
(Vous me
paierez bien la
tête.)
C’est à Paris
que je me coiffe
Casque noir de jemenfoutiste.
En Allemagne, philosophe
Surexcité par Emporheben
Au grand air de Bergsteigleben;
J’erre toujours de-ci de-là
A divers coups de tra la la
De Damas jusque à Omaha;
Je célebrai mon jour de fête
Dans un oasis d’Afrique,
Vêtu d’une peau de girafe.

On montrera mon cénotaphe

Aux côtes brulantes de Mozambique.
 ODE
To you particularly, and to all the Volscians
Great hurt and mischief.

ired.
Subterrene
laughter
synchronous
With silence
from the sacred
wood
And bubbling of
the uninspired
Mephitic river.

Misunderstood
The accents of the now retired
Profession of the calamus.

Tortured.
When the bridegroom smoothed his hair
There was blood upon the bed.
Morning was already late.
Children singing in the orchard
(Io Hymen, Hymenæe)
Succuba eviscerate.

Tortuous.
By arrangement with Perseus
The fooled resentment of the dragon
Sailing before the wind at dawn.
Golden apocalypse. Indignant
At the cheap extinction of his taking-off.
Now lies he there
Tip to tip washed beneath Charles’ Wagon.
PRUFROCK.
 THE LOVE SONG OF
J. ALFRED PRUFROCK
S’io credesse che mia risposta fosse
A persona che mai tornasse al mondo,
Questa fiamma staria senza più scosse.
Ma perciocche giammai di questo fondo
Non torno vivo alcun, s’i’ odo il vero,
Senza tema d’infamia ti rispondo.

us go then,
you and I,
When the
evening is
spread out
against the sky
Like a patient
etherized upon
a table;
Let us go,
through certain
half-deserted
streets,
The muttering
retreats

Of restless
nights in one-
night cheap hotels
And sawdust restaurants with oyster-shells:
Streets that follow like a tedious argument
Of insidious intent
To lead you to an overwhelming question....
Oh, do not ask, “What is it?”
Let us go and make our visit.

In the room the women come and go

Talking of Michelangelo.

The yellow fog that rubs its back upon the window-panes,
The yellow smoke that rubs its muzzle on the window-panes,
Licked its tongue into the corners of the evening,
Lingered upon the pools that stand in drains,
Let fall upon its back the soot that falls from chimneys,
Slipped by the terrace, made a sudden leap,
And seeing that it was a soft October night,
Curled once about the house, and fell asleep.

And indeed there will be time

For the yellow smoke that slides along the street,
Rubbing its back upon the window-panes;
There will be time, there will be time
To prepare a face to meet the faces that you meet;
There will be time to murder and create,
And time for all the works and days of hands
That lift and drop a question on your plate;
Time for you and time for me,
And time yet for a hundred indecisions,
And for a hundred visions and revisions,
Before the taking of a toast and tea.

In the room the women come and go

Talking of Michelangelo.

And indeed there will be time

To wonder, “Do I dare?” and, “Do I dare?”
Time to turn back and descend the stair,
With a bald spot in the middle of my hair—
(They will say: “How his hair is growing thin!”)
 My morning coat, my collar mounting firmly to the chin,
My necktie rich and modest, but asserted by a simple pin—
(They will say: “But how his arms and legs are thin!”)
Do I dare
Disturb the universe?
In a minute there is time
For decisions and revisions which a minute will reverse.

For I have known them all already, known them all:

Have known the evenings, mornings, afternoons,
I have measured out my life with coffee spoons;
I know the voices dying with a dying fall
Beneath the music from a farther room.
So how should I presume?

And I have known the eyes already, known them all—

The eyes that fix you in a formulated phrase,
And when I am formulated, sprawling on a pin,
When I am pinned and wriggling on the wall,
Then how should I begin
To spit out all the butt-ends of my ways and days?
And how should I presume?

And I have known the arms already, known them all—

Arms that are braceleted and white and bare
(But in the lamplight, downed with light brown hair!)
Is it perfume from a dress
That makes me so digress?
Arms that lie along a table, or wrap about a shawl.
And should I then presume?
And how should I begin?

Shall I say, I have gone at dusk through narrow streets

And watched the smoke that rises from the pipes
Of lonely men in shirtsleeves, leaning out of windows?...

I should have been a pair of ragged claws

Scuttling across the floors of silent seas.

And the afternoon, the evening, sleeps so peacefully!

Smoothed by long fingers,
Asleep ... tired ... or it malingers,
Stretched on the floor, here beside you and me.
Should I, after tea and cakes and ices,
Have the strength to force the moment to its crisis?
But though I have wept and fasted, wept and prayed,
Though I have seen my head (grown slightly bald) brought
in upon a platter,
I am no prophet—and here’s no great matter;
I have seen the moment of my greatness flicker,
And I have seen the eternal Footman hold my coat, and
snicker,
And in short, I was afraid.

And would it have been worth it, after all,

After the cups, the marmalade, the tea,
Among the porcelain, among some talk of you and me,
Would it have been worth while,
To have bitten off the matter with a smile,
To have squeezed the universe into a ball
To roll it toward some overwhelming question,
To say: “I am Lazarus, come from the dead,
Come back to tell you all, I shall tell you all”—
If one, settling a pillow by her head,
Should say: “That is not what I meant at all,
That is not it, at all.”

And would it have been worth it, after all,

Would it have been worth while,
After the sunsets and the dooryards and the sprinkled streets,
After the novels, after the teacups, after the skirts that trail
along the floor—
And this, and so much more?—
It is impossible to say just what I mean!
But as if a magic lantern threw the nerves in patterns on a
screen:
Would it have been worth while
If one, settling a pillow or throwing off a shawl,
And turning toward the window, should say:
“That is not it at all,
That is not what I meant, at all.”

No! I am not Prince Hamlet, nor was meant to be;

Am an attendant, lord, one that will do
To swell a progress, start a scene or two,
Advise the prince; no doubt, an easy tool,
Deferential, glad to be of use,
Politic, cautious, and meticulous;
Full of high sentence, but a bit obtuse;
At times, indeed, almost ridiculous—
Almost, at times, the Fool.

I grow old ... I grow old ...

I shall wear the bottom of my trousers rolled.

Shall I part my hair behind? Do I dare to eat a peach?

I shall wear white flannel trousers, and walk upon the beach.
I have heard the mermaids singing, each to each.

I do not think that they will sing to me.

I have seen them riding seaward on the waves

Combing the white hair of the waves blown back
When the wind blows the water white and black.

We have lingered in the chambers of the sea

By sea-girls wreathed with seaweed red and brown
Till human voices wake us, and we drown.
 PORTRAIT OF A LADY
Thou hast committed—
Fornication: but that was in another country,
And besides, the wench is dead.
The Jew of Malta

mong the
smoke and fog
of a December
afternoon
You have the
scene arrange
itself—as it will
seem to do—
With “I have
saved this
afternoon for
you”;
And four wax
candles in the
darkened room,
Four rings of
light upon the
ceiling
overhead,
An atmosphere of Juliet’s tomb
Prepared for all the things to be said, or left unsaid.
We have been, let us say, to hear the latest Pole
Transmit the Preludes, through his hair and finger-tips.
“So intimate, this Chopin, that I think his soul
Should be resurrected only among friends