As globalization runs its course, the domestic world is becoming full of international law. One of the mechanisms by which international law penetrates domestic law is largely unproblematic: our own political actors—Congress and the President through statutes, or the Senate and President through treaties— can incorporate international law into the domestic legal order. But international law now may enter into the domestic sphere in more controversial ways. First, some Supreme Court Justices have suggested that the Court should use international law as a source for construing the U.S. Constitution, and the Court itself has begun to use this interpretative strategy to a limited degree. Such constructions could lead to the invalidation of domestic laws. Second, advocates of customary international law argue for its direct incorporation into domestic law in order to constrain federal and state governments. Finally, others suggest that important domestic statutes be construed in light of customary international law, even if such interpretations prevent the President and his subordinates from exercising otherwise lawful discretionary authority.

We use the term "raw international law" to denote this latter kind of international law, which has not been endorsed by the domestic political process. Raw international law is distinguished from "domesticated international law," which our political branches have expressly made part of our law through the legislative process; as when the President and Senate enact treaties or when Congress by statute decides to incorporate norms of customary international law into American law.