The Historical Origins of the Alien Tort Statute: A Response to the 'Originalists'

Abstract

The thesis of this Article is that Filartiga is more consistent with the original understanding of the Alien Tort Clause than the interpretations advanced by Judge Bork and Professor Sweeney. I argue that the original understanding of the Alien Tort Clause is reflected in its text – “[t]hat the district courts shall have...cognizance...of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States” – not just those for which there is an express cause of action; not just those that violated the law of nations in 1789; and not just those that arose in the context of a capture at sea. In Part II, I review the historical evidence of the Clause's origin and argue that the Clause was designed to ensure that those who violated the law of nations could be held liable not just criminally but civilly as well. Part III responds to each of the arguments raised by the “originalists”: (1) that an express cause of action is needed, which the Clause does not provide; (2) that the Clause should be limited to those torts that violated the law of nations in 1789; and (3) that the Clause should be limited to prize cases. I argue that the first argument is patently antihistorical, and that the second is contrary to the Founding Generation's understanding that the law of nations would evolve. Finally, I contend that the third argument is too selective in its use of history, is contrary to the language of the Alien Tort Clause, would render the Clause largely redundant, and is contradicted by the earliest interpretations of the Clause. In short, Judge Bork's interpretation of the Alien Tort Clause is actually antihistorical, while Professor Sweeney's interpretation is only deceptively historical. It is Filartiga's interpretation that deserves the mantle of originalism.