Today the Supreme Court will hear oral arguments in two cases, Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority, that raise a simple question: whether the Alien Tort Statute applies to corporations.

The Constitution granted Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” Article 1, Section 8, Clause 10, and Congress responded in the Judiciary Act of 1789 by passing the Alien Tort Statute (ATS), which ensured “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS is, literally, one of the first laws ever passed in the United States. It was obviously intentionally broad: an alien may bring a tort suit for any “violation of the law of nations or a treaty of the United States.

SCOTUSBlog has an extensive preview of the argument that details, inter alia, the rise of ATS litigation following the Second Circuit’s 1980 opinion in Filártiga v. Peña-Irala, and the Supreme Court’s 2004 opinion in Sosa v. Alvarez-Machain.

There’s plenty of commentary at SCOTUSBlog about the issues at hand and the various arguments. For recent developments in the courts, Professor Alberto Bernabe has been following ATS litigation for some time. I don’t want to recount the details of the ATS, but rather want to focus on a very particular issue: the analytical sleight-of-hand that Justices Scalia and Thomas, and presumably Justices Roberts, Alito, and Kennedy, will likely use to deny victims of human rights abuse a right to civil redress granted to them at the very beginning of our nation.

I’m certainly not the first to point out the dishonesty of Justice Scalia’s “originalism” — which vanishes the moment it conflicts with his preferred political outcome — and other conservative judicial activism. (It’s a bit dense, but I still like David Zlotnick’s Justice Scalia & His Critics: An Exploration of Justice Scalia’s Fidelity to His Constitutional Methodology, 48 Emory Law Journal 101 (1999)).

But the ATS presents a special case to bring to light the deceptive way in which “originalists” expand or contract the concept of “original meaning” to fit their purposes. Consider Justice Scalia’s argument in his concurrence (joined by Justice Thomas) to Sosa v. Alvarez-Machain that the ATS cannot be used to enforce any norms of international law not in place as of the Judiciary Act of 1789:

Despite the avulsive change of Erie, the Framers who included reference to “the Law of Nations” in Article I, § 8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the “discretion” endorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates.

As Justice Scalia continues, “The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples’ democratic adoption of the death penalty … could be judicially nullified because of the disapproving views of foreigners.”

Recall the actual language at issue in the ATS. As Scalia argues, even though the Framers gave Congress the power in the Constitution “To define and punish … Offences against the Law of Nations,” and Congress responded with the ATS ensuring “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations …,” Congress hadn’t a clue that “law of nations” could be an expansive, shifting concept, and what they really meant to do was to freeze the meaning of that Constitutional provision and the Judiciary Act in 1789.

If you know anything about the Supreme Court, you know where this is going: Heller and Citizens United.

Let’s start with Heller. In contrast to the ATS — which Congress used as a vehicle to provide individual enforcement of the “law of nations” from the first day our nation had functioning courts — the federal government did not bother to provide any means whatsoever for individuals to enforce the Second Amendment with private tort lawsuits until, at best, the enactment of 42 U.S.C. § 1983 as part of the Civil Rights Act of 1871, which permitted the filing civil tort suits against State governments that violated federal rights. In 1934, Congress enacted the National Firearms Act, banning among other weapons sawed-off shotguns, and the Supreme Court affirmed the constitutionality of the Act in United States v. Miller, 307 U.S. 174 (1939). It wasn’t until District of Columbia v. Heller, in 2008, that a narrow majority of the Supreme Court decided that, all along, the Framers had somehow squirreled a right to handgun ownership into a clause that prevented the federal government from disarming state militias.

I don’t mean to revisit the entirety of Heller Jack Balkin elegantly explained how Scalia’s claim to “original meaning” in Heller was at best flawed — but rather to note how Scalia used a completely different form of analysis when attempting to reach his preferred political result. Consider the language Scalia marshaled from State constitutions enacted around the same time:

Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves, and the state. …” In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. …

North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State. …”

The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence. …”

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine— used the “common defence” language of Massachusetts.

Whenever a State wanted to provide a right to individual possession of firearms for personal use, it would add something like, “in defence of themselves,” which is plainly missing from the Second Amendment. So what did Scalia do? He looked a century into the future — e.g., “It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense” and “Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service” — to find the interpretations he wanted.

So much for “original” anything.

And so it was with Citizens United. As Justice Stevens argued in dissent, “whereas we have no evidence to support the notion that the Framers would have wanted corporations to have the same rights as natural persons in the electoral context, we have ample evidence to suggest that they would have been appalled by the evidence of corruption that Congress unearthed in developing BCRA and that the Court today discounts to irrelevance.” You don’t have to look far to confirm that the Framers’ generation had an entirely different view of corporations than we do today — in 1805, for example, the Supreme Court of North Carolina declared “it seems difficult to conceive of a corporation established for merely private purposes” whereas today corporations can be successfully sued for not putting profits over even their corporate mission — but that didn’t stop Scalia from presuming the Framers intended for shadowy front groups for a handful of elites to have a right to unlimited expenditures to influence elections.

But does anyone really doubt what Scalia and Thomas, and probably the three other conservatives, will think of the ATS? That the liberal, expansive, free-wheeling and time-traveling interpretations granted to handguns under the Second Amendment and corporate politicking under the First Amendment will vanish when it comes to holding corporations accountable for engaging in human rights violations? Is there any question the Supreme Court will continue its theme for this year of might makes right?

As the Center for Constitutional Rights argues, corporations may soon have “rights without responsibilities.” They will have the unrestrained right to influence your government, but not the slightest responsibility to compensate the victims of their own human rights violations.


  • As a matter of logic corporations and other institutions cannot be punished to the extent that natural persons can. They do not possess bodies or minds and hence cannot suffer the consequences of actions perpetrated upon either. When the Western legal tradition started down the road of corporate personhood it opened up a can a worms that ought to be closed. While corporations should have rights and responsibilities, those rights and responsibilities ought to be constituted in terms of the kind of entity they are, not in terms of the rights and responsibilities associated with natural persons. The equation of institutions and natural persons as a matter of law is simply lazy.

    • If they can “speak” through money – the essential holding of Citizens United – they can be held accountable through money damages, too.


      • Well they shouldn’t be able to “speak” through money. That’s precisely a ridiculous consequence of the turn taken by Western law (staring in the 19th century?) down the road of corporate personhood. To be clear, I think that persons bare responsibility for the actions in question in this case, but I do not think that pushing further down the road of corporate personhood will help us. Hopefully cases like these, and the hypocrisy you’re exposing, show people that we need to go back up that road instead.

        • That’s a more principled argument than I thought you were raising. If we’re going to return to focusing on the people behind corporations, then, should we eliminate limited liability for shareholders of these companies? That we should hold officers accountable for the conduct they oversaw? The answer cannot be that no one is responsible when a corporation violates human rights laws for profit.


        • Persons should be held responsible. For a corporation to contribute in any way to the violation of someone’s human rights actual living natural persons must make decisions that lead to those human rights violations. Actual, living natural persons are also the entities that enjoy the profits of the corporation and hence the profits of the activities that violate someone’s human rights. Corporations should not be a shield to accountability, though unfortunately they are. As I understand it corporate personhood in Western law is in no small part a product of good faith attempts to empower the justice system to hold someone or something accountable of corporate wrongdoing after the introduction of legal concepts like limited liability. Why not question the root cause here? Psychologically speaking accountability only works when actual persons are held accountable. If persons can put others in danger while seeking profits without any risk to themselves they’ll continue to do so from here till eternity.

        • Danielstroud

          About the languge to the right to bear arms. It seams to me that wether or not it says the individuals right . Its plainly meant all persons, especialy in context to the time being 1776. Every head of house hold and individuals in the colonies at that time independently held firearms for self protection not only from the wilderness but fellow man. The framers would have known this and it would be a widley accepted public norm. Why if the framers were making law to protect the individuals from the tyrany of governments would they limit gun ownership to those in an organized malitia a group that could impose its own tyrany over its members if that malitia group had divided interists with either a polital entity or government. Who in thier right mind could believe that the framers were only intending for some “entity” malitia leader, or armoury to dole out the guns or give permission for members to use.
          How do you kill the bear or magrauders attacking your family if its a days ride to the militia. Just like waiting 20 min for 911, while your family is acosted.

          Daniel stroud
          Digital Media Services International legal video. Specializing in third world countries.

  • Native

    That is a completely lame criticism of Heller. Scalia cited heavily to pre 1789 sources as well as to sources at the time of adoption. Saying he skipped ahead to the Civil War era is demonstrably false. His post Civil War analysis is subsection 4. Want to guess what the previous three subsections dealt with? Earlier eras. And “the right of the people” is supposed to mean a “right” of the states to maintain militias? This is akin to the crap I see from big-firm defense lawyers when defending an obviously culpable client.

    • I don’t have to “guess” what the three prior subsections said, I’ve read them. There’s a difference between “citing to” sources and having sources that actually support your argument. Scalia “cites to” pre-1789 sources, but they don’t support his interpretation. He effectively concedes that by focusing so heavily on post-1789 sources. Read Jack Balkin’s analysis for more about the actual evolving interpretation of the Second Amendment; reading a right to individual possession for self-defense was at best a minority position until well after 1789.


      • Native

        Thanks for confirming you affirmatively misrepresented Scalia’s opinion in Heller.

        • Read it however you like. Scalia does that all the time.