At oral argument in Jesner v. Arab Bank, Supreme Court Justice Neil Gorsuch raised a theory about the about the original meaning of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that gave the district courts cognizance “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Relying on the work of Professors Anthony Bellia and Bradford Clark, Justice Gorsuch suggested that the ATS was originally intended to grant jurisdiction only when the defendant was a U.S. citizen. In a post on Lawfare, Bellia and Clark try to explain why Justice Gorsuch is right. Here, I try to explain why Bellia and Clark are wrong.
The Supreme Court has examined the history of the ATS before. In Sosa v. Alvarez-Machain, relying on the amicus brief of professors of federal jurisdiction and legal history that I wrote, the Court traced the origins of the ATS to a 1781 resolution of the Continental Congress recommending that the states punish offenses against the law of nations and authorize suits for damages by the injured parties. The Court noted that the issue was given fresh urgency by the 1784 Marbois incident, in which a French adventurer assaulted the Secretary of the French Legation in Philadelphia, François Barbé-Marbois. The Court concluded that Congress passed the ATS to cover the three offenses against the law of nations that Blackstone had listed in his Commentaries on the Laws of England—offences against ambassadors, violations of safe-conducts, and piracy. Finally, the Court held that ATS claims based on modern international law should be limited to norms as generally accepted and as specifically defined as those eighteenth century paradigms.
Bellia and Clark’s theory of the ATS’s coverage is narrower than Sosa’s in some ways and broader in others. Their theory is narrower because it is limited to torts committed by U.S. citizens. As Bellia and Clark explain, the eighteenth-century law of nations “required the United States (like all nations) to redress acts of violence by its own citizens against citizens of foreign nations (with whom the United States was at peace) by imposing criminal punishment, extraditing the offender, or providing a civil remedy. Failure to redress such violence in one of these ways gave the offended nation just cause to retaliate against the United States, including through war.” Their theory is broader because it is not limited to the three paradigms that Blackstone identified but encompasses all “acts of violence by a citizen of one nation against the citizen of another.” Indeed, Bellia and Clark deny that the ATS was intended to reach offenses against ambassadors, violations of safe conducts, and piracy at all. Congress addressed these violations of the law of nations separately, and apparently exclusively, by making them criminal offenses in the Crimes Act of 1790. They write, “the ATS was not duplicative of other federal statutes.” Thus, if Justice Gorsuch really wants to follow Bellia and Clark, he would have to abandon the Sosa test for actionable norms, for it makes no sense to tie the ATS cause of action to eighteenth-century paradigms that the ATS was not supposed to cover. He would have to conclude instead that all acts of violence committed by U.S. defendants, natural persons and corporations alike, are torts in violation of the law of nations for which aliens may bring suit in federal court under the ATS.
There is no doubt that the founding generation was concerned about violations of the law of nations for which the United States might be held responsible by other nations. But the text and history of the ATS show that Congress’s concerns were not limited to violations committed by U.S. citizens. The text and history of the ATS also refute just about every other aspect of Bellia and Clark’s theory.
The 1781 Resolution
First, take the 1781 resolution of the Continental Congress that Sosa recognized as the forerunner of the ATS. (As Sarah Cleveland and I have noted, this resolution was also the forerunner of the Offenses Clause in the U.S. Constitution.) The resolution recommended that the states “provide expeditious, exemplary and adequate punishment” for “offences against the law of nations.” Contrary to Bellia and Clark’s theory, the resolution did not refer generally to all acts of violence by U.S. citizens against citizens of foreign nations but specifically listed violations of safe conducts, infractions of the immunities of ambassadors, and infractions of treaties to which the United States was party. This enumeration tracks Blackstone’s list of offenses against the law of nations, with the addition of treaties (which were commonly understood to be part of the law of nations) and the omission of piracy (which the Continental Congress already had authority to punish by itself under the Articles of Confederation).
Contrary to Bellia and Clark’s theory, the 1781 resolution also shows that the Continental Congress saw no inconsistency in providing a civil remedy on top of criminal punishments. The resolution further recommended that the states “authorise suits to be instituted for damages by the party injured.” It is this recommendation that the First Congress later implemented by passing the ATS.
The 1781 resolution does support Bellia and Clark’s theory in one respect. The report of the committee that prepared the resolution expressed concern about offenses against the law of nations “by a citizen of the United States.” But this limitation did not make it into the text of the ATS, and the Marbois incident explains why.
The Marbois Incident
Although the violence against Marbois in 1784 was not inflicted by a citizen of the United States, the French Ambassador considered it a “violation of the laws of Nations” and formally complained to the Continental Congress. Although the national government had no authority to redress this violation, the State of Pennsylvania did, and the assailant was tried and convicted for “an infraction of the law of Nations.”
Bellia and Clark argue that the First Congress addressed the Marbois incident in other ways, by giving the Supreme Court original jurisdiction over cases involving ambassadors and by making assaults on ambassadors a criminal offense. But the fact that a replay of the Marbois incident would have been covered by Section 13 of the Judiciary Act because it involved a foreign diplomat does not mean that such an incident would not also have been covered by Section 9 of the Judiciary Act because it involved a tort in violation of the law of nations. Jurisdictional grants often overlap. Nor does the fact that Congress provided criminal punishment for assaults on ambassadors and other public ministers show that Congress would not also have wanted to allow the injured minister to bring a civil suit in federal court (as Bellia and Clark appear to concede by invoking Section 13’s provision allowing civil suits).
In light of this history, it seems implausible that the First Congress would not have understood the ATS’s reference to “all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States” to include a case like the Marbois incident. After all, Blackstone had listed infringement of the rights of ambassadors as an offense against the law of nations. The Continental Congress had done the same in 1781, urging the states to punish such violations and permit suits for damages. And when such an event had actually occurred in Philadelphia, both the French ambassador and the Pennsylvania court had condemned it as a violation of the law of nations, despite the fact that it had not been committed by a citizen of the United States.
The Text of the ATS
The text of the ATS also refutes Bellia and Clark’s theory—both their attempt to narrow the ATS to torts by U.S. citizens and their attempt to broaden it to all acts of violence. As originally enacted, the ATS gave the district courts cognizance “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”
One will notice immediately that, while the ATS limits potential plaintiffs to aliens, it does not limit potential defendants to U.S. citizens. Bellia and Clark argue that “the ATS did not need to spell out that suits by an alien for ‘a tort only in violation of the law of nations’ meant a tort committed by a U.S. citizen.” This limitation would have been obvious, they assert, “[b]ecause the United States’ obligation under the law of nations was limited to redressing harms by U.S. citizens against aliens.” But if it was unnecessary to spell out that the defendant must be a U.S. citizen, it should have been equally unnecessary to spell out that the plaintiff must be an alien. Under their theory, both limitations would have been implicit in the concept of “a tort only in violation of the law of nations.” The fact that Congress imposed one limitation, and not the other, shows that the ATS is not limited to suits brought against U.S. citizens, and the Marbois incident explains why.
It is also telling that early courts did not read the ATS as limited to suits brought against U.S. citizens. Both Moxon v. The Fanny (1793) and Bolchos v. Darrel (1795) involved claims against foreign defendants. If the limitation to U.S. defendants was as obvious as Bellia and Clark suggest, it is odd that neither court mentioned it.
The text of the ATS also refutes Bellia and Clark’s argument that the ATS was intended to reach all acts of violence. Under their theory, the United States would violate the law of nations by failing to provide redress to an injured alien. But the text of the ATS describes the tort itself as being “in violation of the law of nations or a treaty of the United States.” In an earlier post, I relied on the word “committed,” which appears in the current codification of the ATS but not in the original statute. But the basic argument is the same. Under both the original text and the modern text, the ATS requires that the tort violate the law of nation, not that the failure to provide redress does. Blackstone had identified three offenses that would qualify: infringement of the rights of ambassadors, violations of safe-conducts, and piracy. The Continental Congress relied on this list in 1781 when it urged the states to punish offenses against the law of nations and permit suits for damages. There is no reason to think that the First Congress adopted a broader focus when it made good on the 1781 resolution by passing the ATS.
Bellia and Clark’s final argument is that suits between two aliens violate Article III because they exceed the limits of diversity jurisdiction. The modern answer to that concern is that ATS suits today arise under the federal-common-law cause of action recognized in Sosa. The original answer is that the law of nations was considered part of “the Laws of the United States” for purposes of Article III’s grant of “arising under” jurisdiction. For a full examination of the evidence on both sides, readers should consult Professor Curtis Bradley’s 2002 article and my response. Here, I will limit myself to just four points.
First, Article III’s reference to “Laws of the United States” is broader than Article VI’s reference to “Laws of the United States which shall be made in pursuance [of this Constitution].” The difference in text suggests that there is at least one category of laws that are “Law of the United States” but not made under the Constitution, and the law nations would seem to be the most likely candidate. Second, many of the plans and drafts at the Constitutional Convention on which the final Constitution was based provided for federal jurisdiction over cases arising under the law of nations. Third, during the ratification debates, a number of people read Article III as extending to cases arising under the law of nations. John Jay praised the breadth of Article III in Federalist No. 3, arguing that “[u]nder the national government, treaties and articles of treaties, as well as the law of nations, will always be expounded in one sense,” while William Grayson criticized it at the Virginia ratifying convention for covering “all cases depending on the law of nations.”
Finally, interpreting Article III’s “arising under” grant to include the law of nations will not open the floodgates to suits under international law. Article III is not self-executing. Congress must pass a statute to give lower federal courts jurisdiction. The general federal question statute is narrower than the Article III grant, and Sosa suggested in a footnote that the statutory grant should not be interpreted reach claims arising under the law of nations.
But interpreting Article III’s “arising under” grant to include the law of nations would allow ATS to cover cases between two aliens that involve torts in violation of the law of nations—cases like Marbois’s in the eighteenth century, and cases like Filartiga and Jesner today. That is plainly what Congress intended.