Opinio Juris Symposium: Introducing “The Constitution’s Text in Foreign Affairs”

by Julian Ku

[Michael Ramsey is a Professor of Law at the University of San Diego. He will be posting today and tomorrow on his new book: The Constitution’s Text in Foreign Affairs. Please stay tuned for his posts, as well as for comments by our other symposium participants.]

Thanks to Opinio Juris for organizing this symposium and inviting me to participate. Here are a few opening thoughts.

The Constitution’s Text in Foreign Affairs (Harvard University Press, 2007) attempts to describe the distribution of foreign affairs powers among the branches of U.S. government on the basis of the Constitution’s words and phrases as understood in the founding era. It’s been said that the Constitution’s text is so incomplete or opaque in foreign affairs that no useful framework can be found there. I argue that it can (though many details can’t be resolved this way and even some bigger issues remain unclear).

It’s important to emphasize that the book is not “originalist” in the sense of claiming that we must follow founding-era understandings. It only contends that many founding-era understandings can be discovered with some degree of confidence. I leave to readers what importance to give them.

The book discusses modern cases and debates in terms of founding-era understandings, but it’s not trying to score political points in today’s controversies. Indeed, it will disappoint both sides on many partisan matters, for it finds that the Constitution’s framers steered a middle course between the extremes on issue after issue – sometimes consciously to create checks and balances, sometimes from practical compromises between positions sharply debated at the time.

In its approach, the book uses what might be called ‘historical textualism.’ It focuses on the Constitution’s specific words and phrases, but with attention to the way they were used before the Constitution’s adoption and how they seem to have been understood afterward. This avoids “plain meaning” literalism that reads text in a vacuum, without attention to context. Context-less literalism tends to make the Constitution seem more opaque or ambiguous that it would have seemed at the time (because it misses meanings context can supply), while also importing modern ahistorical intuitions. The book also rejects abstract “framers’ intent” approaches that claim to understand what the framers would have thought about particular issues from their historical, intellectual and ideological backgrounds. If not anchored in the specifics of the text, that inquiry becomes immensely speculative: even if we can identify the framers’ abstract goals (and often they had competing ones), there are many ways they might have sought to implement them; without close attention to text we will have a hard time saying which way they chose.

Without trying to summarize the entire book, I’ll give three examples of its approach and conclusions.

http://opiniojuris.org/2007/08/01/opinio-juris-symposium-introducing-the-constitutions-text-in-foreign-affairs/

2 Responses

  1. Well I’d be interested in hearing what you think they got wrong, but two comments:

    1) If we’re looking at context here, then the Declaration of Independence can’t be ignored.

    2) Treaties are included in the law of the land by Art. VI.

  2. As to treaties, I agree that Article VI makes them supreme law of the land, and therefore (a) binding on the President, (b) preemptive of state law, and (c) superior to prior legislation. The book does not leave much if any room for non-self-execution. In the post, I was referring only to unwritten international law (I’d say customary international law, except the founding era’s law of nations was not only, or even principally, about customary law). Sorry that wasn’t clear.

    (Incidentally, self-execution is one of the things I think the framers may have gotten wrong. There are good diplomatic reasons to not have self-execution, and a non-self-execution regime has worked well enough in modern trade law.)

    On the Declaration, I agree that it shouldn’t be ignored where it bears on a question of textual interpretation, but I did not see a place where it did on foreign affairs matters. I am probably missing something. But I did not intend any slight of the Declaration, and I would accord it the same significance as, say, the Articles of Confederation (which I use a lot).

    Best regards

    Mike Ramsey

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