Robert Bork: It's Judicial Imperialism to Use a Law Passed in 1789 to Hound Human Rights Abusers in 2004

Robert Bork, in the WSJ (July 12, 2004):

The Supreme Court has just endorsed lawsuits against American and foreign individuals and corporations under a supposed "human rights" component of the "law of nations," two amorphous and shifting concepts that give little warning of what conduct may result in liability for damages. Although the Court gave assurances that there will be stringent rules to control the more adventurous lower courts, those assurances are highly dubious and the results promise to be anything but happy.

The center of controversy is the Alien Tort Statute (ATS) which provides that "The district courts shall have original jurisdiction of any civil action by an alien for tort only, committed in violation of the law of nations or a treaty of the United States." No legislative history exists and, as a prominent judge once remarked, "this old but little used section is a kind of legal Lohengrin. . . . No one seems to know whence it came."

When I first sat on a case involving the ATS, my thought was that it must be a modern excrescence, but then I saw that it was enacted in 1789 and made sense at the time. It slumbered peacefully for 200 years until a federal appeals court in Filartiga v. Pena-Irala resurrected the statute in 1980 by awarding damages to Paraguayans for the torture-murder of a Paraguayan in Paraguay by a Paraguayan official. Though that seemed remote from any conceivable interest of the U.S., the court, as Jeremy Rabkin wrote, "cheered on by a host of international law scholars, insisted that 'customary international law' has greatly expanded and now incorporates an international law of human rights." That raises the question of whether Congress's 1789 understanding of what it intended to enact can properly be amended by judges to mean something else. The answer should be a resounding no.

One thing is certain: In 1789, the law of nations had nothing to do with human rights. According to Blackstone, with whom Americans were very familiar, the principal offenses were infringements of the rights of ambassadors, violations of safe conduct, and piracy (included because the offense took place on the high seas beyond the reach of any nation's laws). The ATS may also have been designed to deal with prize law, which allowed private vessels having a marque, or license, to capture enemy ships. The law of nations, in other words, was just that, a law about relations between sovereignties. It would have been preposterous for a small, weak nation clinging to the Atlantic seaboard to have given jurisdiction to its courts to entertain, for example, human-rights suits by Britons against the British crown for actions taken in Britain. Rather than soothing foreign nations by protecting their emissaries, such tort actions would have inflamed them. Yet that is what our courts are doing now, and under the same statute. There is no justification for that result....