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

The Alien Tort Statute, 28 U.S.C. § 1350, which provides federal jurisdiction over suits by aliens for torts in violation of the law of nations, has been used repeatedly in human rights litigation since Filartiga v. Pefia-Irala, 630 F.2d 876 (2d Cir. 1980). This Article looks at the history of the Alien Tort Statute, tracing its origins to the Alien Tort Clause of the 1789 Judiciary Act and, before that, to a 1781 resolution of the Continental Congress urging States to allow damages suits to redress violations of the law of nations. This history shows that the Alien Tort Statute was meant to ensure that violators of the law of nations could be held civilly liable in federal court and that the First Congress expected torts in violation of the law of nations to be cognizable at common law. After reviewing the history of the Alien Tort Statute, this Article responds to the originalist arguments advanced by Judge Bork and Professor Sweeney that the provision should be narrowly construed. Specifically, this Article argues that the First Congress did not intend to require an express cause of action for alien tort suits, that it expected the law of nations to evolve, and that it meant to extend jurisdiction over all tortious violations of the law of nations and not just over certain prize cases. The Article concludes that Filartiga is more consistent with the original understanding of the Alien Tort Statute than the originalist interpretations advanced by Judge Bork and Professor Sweeney