Opinio Juris Symposium: Thoughts in Response to Professors Flaherty and Kent

Thanks to Professors Flaherty and Kent for their insightful comments. Both of them have done great prior work in illuminating the Constitution’s historical understanding, and I continue to learn from them.

Professor Flaherty’s cautions about history’s ambiguities must always be kept in mind in attempting a project like this. I’ve tried to be clear in the book that I appreciate the difficulties he highlights, and that we are often not able to make definitive conclusions but can only do the best we can with the limited materials available to us. Often we can’t say something was definitely true – only that one interpretation seems more likely than another. Likewise, we can rarely claim that everyone in the founding era (or even every framer) believed certain things: we can only say that one interpretation seems to have been more widely embraced than another.

But with those caveats fully felt and expressed, I think Professor Flaherty and I have some core disagreement about how discoverable history is. I think historical judgments fall on a spectrum: some we can be very confident of (even taking Professor Flaherty’s cautions fully to heart) while others are somewhat more speculative. I’ve tried to indicate in the book where I am relatively more or less confident. For example, I am very confident that the common eighteenth-century understanding of “declaring war” included war-initiation power generally, and thus that the declare war clause gave Congress this power and denied it to the President, and I am not shy about saying so. In contrast, I am a lot less confident that the phrase “the Laws” in the take-care clause of Article II, Section 3 includes the law of nations (and thus give the President the duty to obey the law of nations). But, at the same time, I think we can coherently say that this is a better reading of history than the contrary view (which has little support at all).

Ultimately, though, I think the thing to keep in mind is that my goal is to reach the best understanding of the history, recognizing that this may often be well short of certainty, but also recognizing that there are at least more-likely and less-likely interpretations.

Turning to a specific issue, Professor Kent takes up a particularly difficult one: the President’s power to respond to attacks on the U.S. (Incidentally, for those interested in this issue, my colleague Saikrishna Prakash and I have a forthcoming exchange in the Cornell Law Review on it: he takes Professor Kent’s view, and I respond in some more detail than is given in the book).

Professor Kent faults me for not using more post-ratification history to answer this question, but our disagreement turns more on the existence of specific post-ratification evidence than on the usefulness of post-ratification evidence in general. Although I think post-ratification evidence must be used cautiously, the book makes much use of it (especially, for example, with respect to executive power and war-initiation power). My point is mainly that pre-ratification linguistic evidence is also important, and the best results can be achieved by looking at the two together.

The problem in the response-power issue is that, despite what Professor Kent says, there isn’t much post-ratification evidence, at least not from the Washington and Adams administration. The issue was not squarely presented under Washington. Aside from Indian tribes, there were no attacks on the U.S. With respect to Indian hostilities, on the southeastern frontier there were some isolated raids but Washington did not treat any of these as actually creating a state of war with the U.S., and did not respond in force. On the northwest frontier, Washington responded in force against the Wabash tribes after some large-scale attacks. He asked Congress to approve a military force to deal with these attacks (the U.S. at the time had no standing army, so Congress had to approve raising one). However, Congress did not explicitly approve offensive operations – it’s just not clear whether it was thought to have approved implicitly, or whether approval was not required. The issue also did not come up under Adams: the French seized U.S. merchant ships (supposedly for violations of rules of neutrality) in the run-up to the Quasi-War, but France did not attack the U.S. or U.S. forces. The (limited) war did not start until Congress approved it. This says nothing about Adams’ power had France attacked the U.S. The Tripoli incident in 1801 is the first clear episode raising the issue, and the book discusses it at some length. (Professor Kent and I have different interpretations of it, but the bottom line is that Jefferson’s cabinet – Madison included – approved an offensive response, Jefferson ordered an offensive response, the navy made an offensive response, and Congress, informed of the navy’s instructions, raised no objection). So in the response-to-attack issue, I don’t mean to devalue post-ratification evidence – I just don’t think there is much (and that’s one of the things that makes it hard).

Professor Kent’s comments do contain some element of the kind of abstract intent-oriented reasoning that I find unpersuasive. He says that because the Constitution gave so many formerly executive military powers to Congress, why shouldn’t we presume that it gave basically all military powers to Congress? This, though, is not really a textual argument, because it does not point to any text that actually supports it. It is true, as Professor Kent says, that the Constitution’s framers wanted to shift a huge amount of the formerly executive military power to Congress. But this general statement does not say anything about what the Framers wanted to do with the specific power of response. We can be reasonably sure (from Madison’s comments at the Convention, and from practical necessity in a time when Congress met infrequently) that they wanted to give the President power to respond defensively to attacks (and, as noted above, we can be very confident that they did not want the President to be able to initiate attacks). But moving from this to the claim that they wanted the President to have only defensive response power, and not offensive response power, seems pure speculation.

Instead, the book insists that the proper framing of the question is this: because the executive power traditionally included the power to respond offensively to attacks, that power goes to the President unless it is assigned exclusively to Congress; the only clause that seems capable of doing this is the declare-war clause, so the question is whether an offensive response to an attack “declares” war in eighteenth-century terms. I think the evidence that it did is very thin, and the evidence that it did not is material, although not as strong as I’d like it to be. But I’ll be happy to say the book has succeeded if I’ve convinced you this is the right way to frame it.