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The Charming Betsy Canon, American Legal Doctrine, and the Global Rule of Law

Updated: Dec 11, 2020

By: Justin Hughes

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 harming Betsy should be brought to bear in trade disputes where Congress has crafted special rules for recognition and implementation of WTO decisions.

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