THE SUPREME COURT OF THE UNITED STATES AS QUASI-INTERNATIONAL TRIBUNAL: RECLAIMING THE COURT'S ORIGINAL AND EXCLUSIVE JURISDICTION OVER TREATY-BASED SUITS BY FOREIGN STATES AGAINST STATES

In this Article, Professor Lee argues that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violations of treaties of the United States. The basis for nonimmunity is a peacekeeping theory of ratification consent: Just as, by ratifying the Constitution, the States agreed to suits by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in the supreme national tribunal for the sake of international peace. The Founders of the new Republic viewed state breach of the 1783 Treaty of Peace as the leading potential cause for a shooting or trade war. The Article’s thesis is supported by the text of Article III as amended by the Eleventh Amendment and by evidence of original intent, including the inaugural implementation of the Original Jurisdiction Clause by the Judiciary Act of 1789. Nor is it inconsistent with the principle of sovereign dignity for the semisovereign States to be sued by fully sovereign foreign states in the Supreme Court. Justices of the Court throughout the nineteenth and the first quarter of the twentieth centuries acknowledged this aspect of the Court’s original jurisdiction, but awareness was lost by the time of the 1934 decision in Principality of Monaco v. Mississippi when the Republic had become a world power. Reclaiming the Court’s lost jurisdiction today requires a narrowing of that decision, but makes sense given the resurgence of American federalism and the pace of globalization.