Opinio Juris Symposium: Original Meaning Comes Up Short in Foreign Relations Law
I’ll join the chorus praising Michael Ramsey’s work, both the book The Constitution’s Text in Foreign Affairs and his scholarship over the course of more than a decade. Mike’s is an important and distinctive voice in the foreign relations law community. It is refreshingly agenda-free. As Martin Flaherty points out, his conclusions don’t line up neatly along the ideological divide. One might expect the textualist focus of his work to incline him to more revisionist results, and I’m sure the revisionists would like it to be so. Sometimes they do, but on other important issues, he parts ways. To add just one example, Mike sees a historical-textualist basis for Missouri v. Holland. So there is a call-it-like-he-sees it credibility to this work. In the relative land-grab days of foreign relations law, this book stakes a strong claim to a lot of turf. It will be the starting point for future originalist-oriented research in the field.
That said, this all looks like an exercise in scripturalism to me. As a structuralist/functionalist on these issues, someone who thinks recent history far more relevant than the ancient, I feel rather like a Crusader commenting on the Koran. Although the book declaims any position on method and the extent to which text and historical meanings should frame contemporary debates, it’s hard to avoid the implication that these sources should figure more prominently to the extent they “provide a fairly complete basic framework for foreign affairs law.” If it is fairly complete, then it can work as an exclusive methodology, insofar as you don’t have to look for answers anywhere else.
But I think the book ultimately demonstrates that you can’t find all the answers in original meaning. If Mike can’t find the answer, then no one can, and we’re left with the question of what other method should fill the gaps.
In the context of foreign relations federalism, for example, Mike isn’t in a position to play the text straight on a dormant federal power; he concedes that powers beyond those specified in article 1, section 10 are barred to the states. How to tell which ones fly and which don’t? Here he turns to Federalist No. 32 and Hamilton’s observation that states would be denied concurrent power where it would “totally contradictory and repugnant” to the exercise of federal power. Leave aside the use of the ancillary source by way of a rule of decision – and I agree with Martin’s point that Mike exaggerates historical certitude in the face of textual ambiguity – but how do we determine when the exercise of a state power will qualify as such?
Which also begs the question: even if Hamilton hadn’t set out this standard in the Federalist Papers, wouldn’t we arrive at it through some other path? Ramsey allows that the drafters may have reached “foolish” results on these and other issues. Does that mean that we should hew to them in an area in which the stakes have been high, with the survival of the national not so implausibly in the balance?
I think the context has changed significantly in recent years, in a way to substantially normalize foreign relations law. So I would also shelve Zschernig, but for reasons having little to do with historical meanings of the constitutional text, except to the extent those meanings comprehended the basic structural necessity of reining in the states where their actions would systematically undervalue national interests with attendant high national costs. Where those costs become manageable – as they have today – the need for exceptional restraints fades away.
Indeed, I would give the states a much longer leash today than the Founders would ever have contemplated, and in any case the states are taking it. Why shouldn’t the states have the equivalent of diplomatic relations with foreign countries? Mike finds such activity “plainly” repugnant under Hamilton’s standard and a bar thereon “self-evidently necessary.” That was once surely true, at the time of the Founding through recent times. So true that the Compact Clause was interpreted (in Holmes v. Jennison and in practice) to bar any communication between state officials and foreign diplomats. Obviously, that’s changed today; there’s an increasingly dense network of such contacts. We might even think of the many foreign trade offices that states maintain abroad as proto-embassies. The Framers would have found such activity repugnant but we don’t, and into the future there’s likely to be a lot more of it. Ditto for increasing contacts between members of Congress and foreign governments. So much for Ramsey’s capacious “executive power” (which includes — problematically, as Martin points out – among many other things the power over immigration) helping us out very much in explaining the phenomenon.
So I guess I’m left wondering how much difference it makes, even if the text and meaning are more complete than had been thought. They’re still clearly incomplete, and we have to look elsewhere for some answers. Once we start doing that, whatever we can find in the founding era – even if there’s quite a lot of it – looks like an inferior source of guidance up against functional criteria and more recent practice. Interpreting the oracle is always going to undertaken through contemporary perspective.