While the United States is increasingly pursuing a policy of positive engagement with the International Criminal Court (ICC), no one expects the United States to join the court anytime soon. There are too many political barriers and uncertainties about the court’s operations. But if the United States someday decided it wanted to join the ICC, would membership be constitutional?

In a recent article, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, Professor Eugene Kontorovich argues that participation in the ICC would violate the U.S. Constitution, both as an unconstitutional delegation of federal judicial power to courts not created in accordance with Article III and as a violation of the Bill of Rights’s protections attendant to criminal trials in the United States. Kontorovich bases his argument primarily on history, specifically the initial opposition of some members of the U.S. government to membership in international courts adjudicating cases involving the suppression of the slave trade in the nineteenth century. Kontorovich characterizes the nineteenth-century slave-trade tribunals as criminal, rather than civil, in nature. He argues that their criminal nature distinguished these courts in constitutionally significant ways from other international tribunals in which the United States participated, without constitutional qualms, in the early decades of the United States’ existence; participation in these courts has been used to argue that U.S. participation in modern international courts would also be constitutional. Kontorovich concludes that “[t]he evidence...suggests that giving an international criminal court jurisdiction over certain offenses within the ICC’s charter would generally be unconstitutional.” In this Article, I argue that Kontorovich has misread this bit of history. A more accurate reading of this episode does not lend support to the argument that U.S. participation in the ICC would be unconstitutional in the ways Kontorovich suggests.

International Courts and the U.S. Constitution: Reexamining the History