Civil War in the U.S. Foreign Relations Law: A Dress Rehearsal for Modern Transformations, The The Use and Misuse of History in U.S. Foreign Relations Law
St. Louis University Law Journal
civil war, constitution, foreign relations
The first of the four U.S. foreign relations law insights of the Prize Cases that this Article will discuss is the notion that international law provides a basis for the President's exercise of military force in a manner neither specifically enumerated in the Constitution nor preauthorized by congressional enactments. The specific military action was the proclamation of a naval blockade that applied not only to active Confederate belligerents but also to loyal U.S. citizens residing in seceding or soon-to-secede states and to foreign neutral citizens. The second insight is the notion that federal constitutional law protections for U.S. citizens, such as the Fifth Amendment prohibition on the taking of private property, may be displaced by the international laws of war even in a category of conflict-civil war-not seemingly governed by international law and with respect to noncombatant U.S. citizens who claimed to be loyal. The third is the idea that the President may, consistent with the Constitution, unilaterally disregard or suspend the operation of on-point provisions in peacetime treaties in times of war, such as suspending-by the proclamation of blockade-terms in treaties of amity and commerce committing the United States to allow the merchant ships of its treaty partners free entry to its ports. The fourth is the role of judicial deference to the Executive in its interpretations of international law, both treaties and the customary international laws of war, particularly with respect to executive interpretations that appear to "push the envelope" in terms of what might be viewed as permissible under the prevailing rules of the laws of war. This Article will address each in turn after a short description of the facts and legal issues in the Prize Cases.
Thomas H. Lee,
Civil War in the U.S. Foreign Relations Law: A Dress Rehearsal for Modern Transformations, The The Use and Misuse of History in U.S. Foreign Relations Law, 53 St. Louis U. L.J. 53
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/409