01 Aug Opinio Juris Symposium: Introducing “The Constitution’s Text in Foreign Affairs”
[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.
A second example is war-initiation power. Although Article II gave the President “executive” power generally, its framers didn’t want to give the President everything that had been called “executive,” so they textually assigned some powers elsewhere. For example, they gave Congress power “to declare War.” Modern interpreters struggle with this phrase, because we think of it as meaning formal declarations; the Constitution may appear not to address “undeclared” wars (where no formal proclamation is issued). But taken in context, the language is clear. Eighteenth-century writers said that war could be “declared” by actions, including armed attacks, as well as proclamations. And after ratification, Americans appeared to think the President lacked war-initiation power, showing that they understood “declare” to include declaring by action.
The third example is international law’s constitutional status. The Constitution says little about it directly – only that Congress can “define and punish” offenses against the law of nations. Read literally, that seems not to give the law of nations any place other than as Congress enacts. But founding-era Americans had a robust idea of the law of nations, so an abstract intent-oriented approach might instead think their Constitution embraced international law quite broadly. The historical text-based approach yields an intermediate position. The law of nations’ central place in founding-era thought suggests that it came within some of the Constitution’s general phrases. For example, Article III’s “judicial power” likely gave courts power to use the law of nations to decide cases in appropriate circumstances, because Anglo-American courts traditionally had this power, and the President’s duty to assure that “the Laws” are faithfully executed probably included the law of nations. On the other hand, the framers easily could have, but did not, make the law of nations part of Article VI’s “supreme Law of the Land” (which is defined specifically in a way that excludes it).
In sum, I think that the book’s historical textualism gives a more complete and accurate account of the Constitution’s foreign affairs structure, as it was originally understood, than either plain meaning or abstract intent-oriented approaches. It surely can’t resolve everything, and on many issues it can only say what seems the more likely answer. But I think it shows the founders’ foreign affairs Constitution to be more accessible and understandable than is often supposed.
Of course, this only begins the discussion, because it doesn’t say how we should use these conclusions in constitutional debate today. I remain conflicted on that point. I tend to think the framers got most important foreign affairs allocations right, so I have an instinct to say that we should stick with their directions. I’m also not sure, if we wanted to adopt a different approach, how we would agree on the answers (especially without more Supreme Court direction than foreign affairs usually gets). At the same time, though, I do think they got some things wrong (or, right for their time but not so right for ours), and writing the book has made me appreciate the tension when history points an uncomfortable way.
I look forward to comments and criticism.