Opinio Juris Symposium: Original Meaning Comes Up Short in Foreign Relations Law

by Peter Spiro

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?


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