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.