Opinio Juris Symposium: The Temptation of a Coherent Constitution

by Martin Flaherty

I am happy that any disagreement Professor Ramsey and I have regarding history is more a matter of degree than of kind. That said, the matter of degree may well be greater than even he acknowledges. To that extent, I believe he may oversell a number of the ostensibly textual points he makes in his work.

The agreement in kind relates to the potential ambiguity of historical sources. It is indeed refreshing – and doubtless a source of Professor Ramsey’s own substantial historical research – for a legal scholar to concede that history may frequently produce answers every bit as contradictory, unclear, and messy as other sources of constitutional interpretation. I further agree that the use of “Laws” in Article II, section 3, and the use of “Laws” more generally in the Constitution, resisted a public consensus in any individual case, much less anything approaching a consensus across the board. Conversely, I myself concede that in certain instances history can yield a sufficiently clear, general understanding at the time a particular text was ratified. Here as well, Professor Ramsey’s reliance on the “Declare War” Clause hits the mark. In line with Treanor and many others, yet contrary to Yoo, I too read the relevant sources as confirming the view that the Clause means that Congress must initiate hostilities.

Yet there remains the difference in degree. Decades of poking around in these materials convince me that cases in which a dominant or prevailing public understanding emerges as applied to modern controversies are few and far between – especially in the context of separation of powers. I do not necessarily go as far as Justice Jackson in Youngstown, who famously declared that what the Founders thought about specific separation of powers issues are “as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh,” that is, never clear. But I tend to come close.

At the risk of extending an overlong debate, a case in point is Professor Ramsey’s central reliance on the term “executive power.” His basic contention remains Hamiltonian, or at least consistent with what Hamilton argued briefly in passing. “Executive power,” the argument goes, included a general conception of foreign affairs power as generally understood in the 18th century. It then follows elegantly that the Constitution’s text becomes marvelously coherent. Unless otherwise specified, the default position in foreign affairs controversies is that executive assertions prevail. To his credit, Professor Ramsey tempers this key assertion with a generous view of instances in which the Constitution brings in the other branches, especially the Senate. The problem with all this is simply that beyond its core meaning of “implementing laws,” executive power commanded no general agreement. To the contrary, almost no one even made the specific argument that the term included foreign affairs powers. Sadly, forests have been felled and global warming advanced by detailed debates between myself and Curtis Bradley on one side, and Professor Ramsey and Saikrishna Prakash on the other. My point here is less about who is right or wrong. It is, rather, that I believe the exchange at a minimum indicates that the certainty of history does not go anywhere as far as Professor Ramsey generally assumes.

To this I would add a more nearly textual point, though one rooted in historical reality. Professor Ramsey’s constitutional approach may flirt too much with what Christopher Eisgruber refers to as the “aesthetic fallacy.” By this Eisgruber – in the spirit of Henry Monaghan, oddly enough – means the view that the Constitution is a wonderfully coherent document in which nearly all language and structure clearly relates to each other, and that if we just think about it hard enough, we too will appreciate its elegance and clarity. A historian, conversely, presupposes that this is a document chock full of compromises hammered out piecemeal by men with very different backgrounds, all of whom were sweating in wool clothing during a hot Philadelphia summer wanting to get home sooner or later. One would expect, in other words, that the Constitution would be filled with certain gaps, inconsistencies, and surprises notwithstanding a general elegance.

The allure of an aesthetically pleasing Constitution is seductive. It makes for a powerful theory, one reason why I think that Professor Ramsey’s book will be influential. The appeal of such a Constitution nonetheless leads interpreters astray. Nowhere is that more true than where the quest for textual coherence tends to eclipse the historical complexity that should give anyone pause before embracing global coherence in the first place.

http://opiniojuris.org/2007/08/02/opinio-juris-symposium-the-temptation-of-a-coherent-constitution/

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