Opinio Juris Symposium: In Conclusion

Professor Flaherty’s recent post is a great one in getting at the essence of my view and our disagreement, and a fitting way to wrap up the discussion.

I do believe in a coherent Constitution. Not a perfect Constitution, for the text surely has redundancies, gaps and contradictions on particular matters, as well as substantive flaws. But I think it contains an intelligible framework (at least in foreign affairs). That is the book’s core claim.

The Constitution’s coherence is historically plausible – indeed, likely. Writing the Constitution was a major undertaking the Convention delegates took very seriously. Foreign affairs was a leading concern for them, after the debacles of the Articles of Confederation. The intellectual caliber of many of them was very high, and some (like Madison) had spent years thinking about the best structure of government). They knew their product would be closely scrutinized in thirteen separate ratifying conventions and in the aggressive popular media. It was so scrutinized; and though a host of objections were raised, it was not condemned for being fatally incomplete or incoherent in foreign affairs.

With this background, it would surprise me if the Constitution lacked a generally coherent foreign affairs structure. That’s why, for example, I find it unlikely that the text would simply fail to allocate diplomatic and communicative powers (which is the consequence of Professor Flaherty’s claim that “executive Power” did not include them). I don’t regard “coherence,” at a general level, as a fallacy, but rather a likely outcome of the process.

Again, I thank Opinio Juris for the opportunity to have this discussion. Thanks to everyone for the comments, and I hope you’ve enjoyed it as much as I have. Best regards to all.