The 'Charming Betsy' canon, American legal doctrine, and the global rule of law

In the 1803 'The Schooner Charming Betsy' case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The 'Charming Betsy' canon has bec...

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Bibliographic Details
Published in:Vanderbilt journal of transnational law 2020-10, Vol.53 (4), p.1147-1206
Main Author: Hughes, Justin
Format: Article
Language:English
Subjects:
Analysis
Comity of nations
Customary law, International
Exterritoriality
Interpretation and construction
Judicial review of administrative acts
Law
Laws, regulations and rules
Rule of law
Separation of powers
Social aspects
Trade disputes
U.S. states
World Trade Organization
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Summary:In the 1803 'The Schooner Charming Betsy' case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The 'Charming Betsy' canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine "has for so long been applied by this Court that it is beyond debate." After exploring the traditional justifications for 'Charming Betsy', this article proposes that the canon should be justified, not just by Congressional intent or separation of powers, but by our desire to promote "rule of law"globally. Based on this justification for the canon, the article reasons that it should be applied more vigorously in relation to legal norms established by treaty than in relation to customary international law. The article also proposes a nuanced relationship between the 'Charming Betsy' canon and another key interpretative tool of American courts, the 'Chevron' doctrine. Finally, the article explores whether and how 'Charming Betsy' should be brought to bear in trade disputes where Congress has crafted special rules for recognition and implementation of WTO decisions.
ISSN:0090-2594