Opinio Juris Symposium: Thoughts in Response to Professors Spiro and Ku

Thanks again for the excellent comments. Here I’ll take up those offered by Professors Spiro and Ku. I agree with Professor Spiro that historical textualism can only go so far in answering modern questions (assuming one wanted to use it that way), and that some contemporary perspective is inevitable. But I think it goes a lot further than he admits, and the Zschernig v. Miller example proves it. How much involvement should states be permitted to have in foreign affairs? That is surely a difficult policy question with many possible answers – and, perhaps as important, many possible ways of framing it. Historical textualism provides an approach, as I’ve laid out: states cannot do things that are specifically prohibited in Article I, Section 10 or by statute or treaty; at minimum, there is a very strong presumption that other things are permitted. (A literalist would say that all other things are permitted, but the Hamilton quote and others like it suggest that this goes beyond the way founding-era Americans understood the language, so I would not go that far.) Even the moderate Hamiltonian version, though, shows Zschernig to be plainly wrong. No amount of appeal to the dangers of the Cold War in the abstract can suggest that states administering their own probate laws in ways that have caused some minor diplomatic objections (but not enough to worry the State Department) is something that either (a) is totally contradictory to the federal exercise of foreign relations; or (b) could not easily be fixed by treaty or statute. The point of (and the payoff from) the appeal to original meaning here would not be that the framers addressed this very situation, but that the historical meaning of the Constitution’s text establishes a framework that places a very high burden on the federal government in a Zschernig-type situation – one that could not possibly have been met in Zschernig itself, and probably not in most other cases likely to arise.

Two other quick points. First, although Professor Spiro doubts that original meaning can provide much certainty in deciding modern debates, I’m quite skeptical that either of his alternatives (“functional criteria and more recent practice”) can do anywhere near as well. In foreign affairs federalism, for example, practice seems to consist of states taking increasingly important roles (as Professor Spiro has well documented) but also an array of Supreme Court cases pointing the other way (not just Zschernig, but Dames & Moore, Crosby v. NFTC, and AIA v. Garamendi). I really don’t know what to make of these competing trends. And “functional” (aka policy) considerations seem necessarily always in the eye of the beholder.

Second, it’s not clear to me that the use of historical meaning is an all-or-nothing proposition, as Professor Spiro seems to imply. Although I’m not necessarily advocating the approach, I could imagine someone saying that historical meaning can be a starting point or a presumption, subject to overriding functional or practice-based modifications. Thus one could see a role for the book’s project in modern debates, without denying the relevance of other considerations.

Professor Ku raises some interesting and somewhat related thoughts on self-executing treaties. I tend to agree with his policy preference for non-self-executing treaties, mostly for the reasons he states. But I don’t think that makes them any more defensible under the text’s historical meaning. A short version of the history, as I see it, goes like this: the Framers dramatically overreacted to two foreign policy crises of the 1780s under the Articles of Confederation. First, under the Articles not only were treaties not self-executing, but they could not be implemented by federal legislation. Implementation depended on the states, which were totally irresponsible, especially (but not only) in the case of the treaty rights of British creditors. Second, the attempt by a majority of states to make a treaty with Spain that traded claims to the Mississippi River for concessions elsewhere enraged the minority with Mississippi interests. The result was that the Framers created what seems a fairly odd treaty regime, at least for a nation that wants an active foreign policy: they made treaties very hard to approve; and once approved, made their implementation inflexible and legalistic. There’s a lot not to like in the framers’ model, but I think it quite clear (with apologies to Professors Flaherty and Spiro) that this is the model they chose.

On the self-execution point, for example, Article VI flatly says that “all” treaties “shall be” the supreme law of the land. Non-self-execution manifestly requires the Senate, or the President, or the courts, to say that, nonetheless, some treaties shall not be the supreme law of the land. Because I am not a literalist, I am open to historical evidence showing that, despite the text’s apparent clarity, this is not the full story as to how founding-era Americans understood it. But there isn’t any such history, and in fact what history there is confirms the apparent meaning. (Let me acknowledge in passing my great debt to Professor Carlos Vazquez, who made these points fully and forcefully before me). While I share Professor Ku’s discomfort, I think we have to recognize that sometimes the framers made mistakes (and in this case it is perfectly understandable how they came out where they did).

The modern question is what to do about it. What we have done, in this case, is to evolve a practice that evades both of the framers’ key commands: that treaties receive supermajority approval (by allowing congressional-executive agreements), and that treaties necessarily be part of the law of the land (by permitting the Senate/President/courts to say that sometimes they are not). Perhaps we can regard these developments as de facto constitutional amendments, or else just the practice and policy that Professor Spiro prefers.

I think this story is interesting in itself, even if one resists using the historical meaning to determine modern meaning. For that reason alone, I think Professor Spiro is too quick to dismiss the project – surely it’s worth knowing where we started, even if we have come out somewhere else? And one might think (though again I stress that I am only suggesting) that self-execution’s (and treaty supermajority’s) root in and over-reaction to particular problems of the eighteenth-century supports a relaxation of the framers’ command, whereas in foreign policy federalism the lack of any compelling policy imperatives or unbroken practice supports sticking with the framers’ design. In any event, to make arguments like these, the first step is to figure out the text’s historical meaning. For now, that’s all I’m trying to do.