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.