Suppose that Copernicus, as a public service, had undertaken to manage a planetarium designed on geocentric principles. Being Copernicus, he no doubt would have done a superb job, whatever reservations he may have had about the theoretical soundness of the business.
Judge William Fletcher, when he was Professor Fletcher, brought to his field a change close to a revolution, restoring general law to the conceptual universe and demonstrating the historical and theoretical inadequacy of the unsophisticated version of the Erie doctrine that had become dominant. By restoring the role of general law in the ontology of American jurisprudence, he both improved our understanding of earlier thinking and opened up possibilities that had been closed to those who thought that every legal norm must be the creation of some identifiable sovereign.
For example, recovering the general law, and the status of the law of nations as the pre-eminent example of general law, makes it possible to understand the framers’ decision to constitute the Supreme Court of the United States as a tribunal to decide cases between States of the Union, without granting Congress power to adopt the rules that would be applicable in such cases. That decision made sense to lawyers who believed that the Court would apply an existing set of legal norms, well known to them. Understanding the law that governs cases between States as general law, and not the law of any one sovereign, also makes unnecessary the post-Erie move of characterizing that law as federal in order to avoid the even more unreasonable result of calling it state law. Surely a boundary dispute between Massachusetts and Rhode Island should not be governed by the law of either contending party, but just as surely the Constitution provides no applicable rule, nor does it empower any federal lawmaking authority to create one. No federal law need be found, or invented, however, if the law of nations is available as general law.
Professor Fletcher is now Judge Fletcher, and as such his role is to operate the Supreme Court’s planetarium, without regard to his private views of its accuracy in depicting the legal cosmos. Combining his scholarly past with his present role as public servant, Judge Fletcher now brings his unique insights to bear on the Supreme Court’s latest encounter with general law turned federal common law, Sosa v. Alvarez-Machain. In that case the new federal common law gobbled up yet another bit of the general law, the law of nations referred to in 28 U.S.C. § 1350, the descendant of the alien tort clause of Section 9 of the Judiciary Act of 1789. As Judge Fletcher explains with his characteristic lucidity, the Court’s opinion answers some questions while leaving others open.
I will focus on one of the questions it leaves open, in an attempt to clarify the considerations that have driven the Court to conclude, in the face of text, structure, and history, that some unwritten norms are laws of the United States as that term is used in the Constitution. The question is whether this latest bit of the new federal common law, the bit that incorporates some of the law of nations, is federal law for purposes of Article VI as well as Article III. I will argue that it will have to be so regarded, and that the reasons for that conclusion help expose the complexities, not to say inanities, that follow from the Court’s decision to deny the separate existence of general law and absorb much of it into federal law.