Opinio Juris Symposium: Can History Determine Textual Meaning?
[We are pleased to have Martin S. Flaherty as a second participant in the discussion today. Professor Flaherty is the Leitner Family Professor of International Law at Fordham Law School and a Visiting Professor at the Woodrow Wilson School of Public & International Affairs at Princeton University. A widely published scholar in the fields of constitutional law and history, foreign relations, and international human rights law, we are thrilled to have his comments here today.]
Mike Ramsey’s book, The Constitution’s Text in Foreign Affairs, will without question be a major and outstanding contribution to the field of U.S. foreign affairs law. The field itself has never been more important yet is only now benefiting from new, comprehensive, theoretical monographs. The current importance of U.S. foreign affairs law needs little elaboration. Iraq, Afghanistan, the “Global War on Terror,” ongoing detentions in Guantanamo Bar, not to mention globalization, the International Criminal Court, and human rights means that judges, lawyers, and citizens will need to examine this subject as never before. There are, however, almost no works that attempt to present a unified theory of foreign affairs law in the manner commonly seen on the domestic front. Probably the closet thing remains Louis Henkin’s magisterial Foreign Affairs and the Constitution, but his volume is more in the nature of a treatise than a work of constitutional theory.
Ramsey’s approach is original. As he indicates, the conventional wisdom among scholars who agree on little else is that reliance on the Constitution’s text to resolve foreign affairs law disputes is all but quixotic. Ramsey nonetheless offers an approach which points toward answers in an array of current and longstanding disputes that relies on text to a great extent. That said, he admits he must also rely upon history, if only because the meaning of various key texts has been lost. Nonetheless, his reliance on text appears always to remain the point of departure and the book never loses cite of its textual moorings notwithstanding its excursions into history.
The theory that results from this approach is coherent, if ultimately problematic. A certain degree of foreign affairs scholarship, to be sure, also reflects a certain coherence, whether Harold Koh’s emphasis on Congressional power or John Yoo’s focus on executive authority. Much if not most foreign affairs scholarship nonetheless tends to be piecemeal. Even so great a theorist as John Hart Ely, for example, in War and Responsibility did not offer a unified vision of U.S. foreign affairs, but instead concentrated on one aspect, the war power. Ramsey’s book, by contrast, applies an integrated separation of powers model across the board to areas ranging from detention, treaty termination, executive agreements, federalism, war, and torture. Whether one agrees with its prescriptions or not (and in many cases I don’t), it must be said that the theory he constructs rests upon concept that is readily grasped yet wide-ranging.
The results that Ramsey’s approach indicates are surprisingly balanced, both in the context of foreign affairs scholarship and politics more generally. Many of his doctrinal conclusions would enervate “liberals.” The President, for example, would be able to fight undeclared “defensive” wars, to undertake even provocative actions short of war, and to terminate treaties under their terms without Senate approval. Likewise, the powers of the states would not be affected by executive agreements, presidential orders, and customary international law. Yet many of Ramsey’s prescriptions would likely alienate “conservatives.” The President’s “executive” foreign affairs authority would have to be tethered to some enactment, whether treaty or statute. Thus, the President could not unilaterally seize steel mills, order detention or torture, or terminate treaties that did not so allow under their terms. In addition, Ramsey also largely defends a role for the courts in foreign affairs. Finally, the book rightly argues that the exercise of Constitutional authority abroad can be done only subject to the Constitution’s limitations on power, adjusted to various special circumstances overseas.
My major significant qualm about The Constitution’s Text in Foreign Affairs – and fair warning, it is significant — is its use of history.
This creates several problems that would arise were this a work of history rather than constitutional theory. For one thing, the period reveals no more than a handful of individuals affirmatively equating “executive” authority with a general “foreign affairs” power, this among hundreds if not thousands of utterances. More importantly, the book tends to ignore a plethora of evidence that undercut Ramsey’s key assertions about executive power. This is not to say that Ramsey does not identify a certain strand in eighteenth century thought on this point. But, the disclaimer in the introduction notwithstanding, history is too messy, and there are too many other strands, for the book to assert that the Founders thought x, or worse, they “must have” thought x, to hold up unchallenged. That said, Ramsey does temper many of his assertions in other ways in a manner far more measured than most legal scholars who attempt to invoke history.
I believe the problem can be solved, if not by Professor Ramsey, then by a careful reader. It is simply to modify the introductory claim. To my mind, this work’s potential is not merely as descriptive book about the Constitution’s foreign affairs text as it was “understood” in the eighteenth century. Pitching it this way make it rely too much on one-sided history, and ironically does the book’s theory a disservice by rending to be a historical curiosity that may or may not be relevant to the age of globalization. Rather, what this book really is doing is presenting an elegant, balanced theory derived from text and one – not “the” – contemporary understanding of that text shared by some leading – though not all or maybe even most of — the Founders, that can resolve many modern disputes. Without having to spend too much time on foundational theory, Ramsey could make a far more powerful case for his framework by its reliance on: a) text; b) certain contemporary thinkers; as well as c) the theory’s own internal coherence and elegance; d) its balance as an alternative to “extreme” theories on the right and left. In short, I would strongly urge that he ratchet down the books veiled reliance on originalism, if only because the history is far too complex to sustain it. Conversely, the framework he presents shouldn’t have to rise and fall based on a contentious assertion of history. Rather, its basis in text, its historical pedigree (rather than history’s command), and the other factors mentions would make it less open to attack from historians and convince those who were not inclined to originalism to consider and apply it.