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

by Michael Ramsey

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.


2 Responses

  1. 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).

    No doubt I am too simplistic for such erudite company but I must say that I find this internal foreign relations law discussion quite strange.

    As David Sloss once put it in a wonderful discussion at the conference in Vancouver, at the time of the Constitution the real law was international law and this constitutional law was newfangled experimental stuff.

    That a few white landowners might have had the temerity to assert they are the People and through their vote impose their will in the new nation is the historical artifact we have to live with. The instrument, as Thurgood Marshall pointed out in 1989, was defective at birth. In any event, it is internal law.

    In that the United States is a subject of international law and has international law obligations (treaty and customary international law), it seems strange that one would spend great time worrying whether the Constitutional language does by its terms place a duty on the President to obey international law.

    The Constitution is the highest internal law of the US but is still mere internal law of the United States. As such, the splitting of roles (to change from separation of powers language) that is done there is of little if any moment on the international plane. It is the plumbing of the nation.

    I would suggest the more important questions are whether the United States is in compliance with those international obligations and what happens when one or the other parts of the United States structure acts in contravention of those international obligations.

    I can fully accept that a President may decide he has the Constitutional power to act inconsistent with international law (or for that matter domestic law). That President may get Congress to write him legislation that says that and that President may get a Judiciary to validate all those actions by packing the courts with his/her friends. Let us imagine we are at Justice Jackson’s zenith situation.

    Let us further suppose that the President acting at this zenith is seen to be in violation of United States international law obligations. Has the President breached some duty to obey international law? It would seem that the answer would be a resounding yes. The combination of the Constitutional actions is immaterial to this. The essence is the departure from its international law obligations of the United States through the acts of its organs.

    I must say how strange it must be to think that the United States could have a duty but that the constituent organs of the United States would not have a duty that is on the United States. No doubt I am missing some very subtle sleight of hand here – but I find it very subtle.

    What then becomes more interesting is whether the internal organs are capable of bringing the President or other branches back in compliance with the duty. On the external side, the question is whether other nations are able to bring the United States back into conformity with the international obligations that are owed to them. How much acquiescence or resistance goes on internally or externally? That affects whether the duty remains or is changed (treaty modification or customary international law).

    I wish more would be written about the banal rule of international law that “no state may extract itself from its international obligations through its internal law” which developed for the most obvious and not unsubtle of reasons.



  2. Concerning the use of history for interpreting constitutional language, readers may find it relevant that the Vienna Convention on the Law of Treaties states that a treaty’s travaux preparatoires and circumstances surrounding the treaty’s conclusion may be used only as a supplementary means of interpretation in order to confirm the meaning of the treaty that already has been established by construing the treaty in conformity with the parties’ other international legal obligations. See VCLT, art. 31-32. Indeed, if the U.S. Constitution is a treaty (as I have argued elsewhere), then Prof. Ramsey’s use of historical sources is somewhat off the mark for constitutional interpretation because such historical materials may only be used as supplementary means of constitutional interpretation for confirming what the meaning of constitutional text as construed by the U.S.’ other international legal obligations. Furthermore, an international legal constructionist approach would find those historical materials that conflict with an international legal construction of U.S. constitutional provisions irrelevant, and the problem (recognized by Prof. Ramsey) posed by what to do with those historical sources that conflict with other historical sources is resolved: discard those historical sources that conflict with the U.S.’ international legal obligations.

    Francisco Forrest Martin

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