International Law in the U.S. Supreme Court: A Partial Defense of “Insider Doctrinal History”

by Harlan Cohen

One of the most intriguing and admirable aspects of this book is that the editors have included within it a scathing critique of the project as a whole. In Chapter 5, “A Social History of International Law: A Historical Commentary, 1861-1900,” John Fabian Witt comments on three preceding chapters on the Supreme Court’s jurisprudence during that period. In a critique that could easily (and seems intended to) be extended to the whole book, Witt takes the authors and editors to task for assembling an “insider doctrinal history” that fails to take up “the most important and interesting questions about the history of international law (in or out of the U.S. Supreme Court).” (p. 166) Ouch! Reading the book, I kept coming back to this critique. Is Witt’s assessment fair? And if not, what is he missing? Answering this question forces us to think more carefully not only about the purposes of this book, but about the exact relationship between law and history as well.

Witt describes three main approaches to international law history, (1) insider doctrinal history, (2) outsider doctrinal history, and (3) social history of international law. “It is fair to say,” he writes, “that most of the contributions to this volume fall broadly into the insider doctrinal history school.” (p. 165) As he describes it, the insider doctrinal approach is lawyer’s history, using lawyers’ materials and methods to find the historical roots and legitimating legal basis of the field. The problem, as Witt explains, is that this type of account leaves out “the politics of the Supreme Court, its material context, and its ideological, moral, and economic stakes. What’s missing, in short, is society.” (p. 173) For Witt, what’s required instead is a social history of the Court and international law.

What should we make of this critique? Based on my previous post worrying that the social, political, and cultural context of the Court’s work might be obscured by the book’s grand narrative, one might expect me to agree with Witt. And at a certain level, I do. In fact, I’ve previously made a call for exactly that kind of social history myself.

And yet, I can’t help feeling that the critique is unfair and a bit misplaced. It’s not just that the authors of the book do often take account of these social factors, nor is it that the book simply has different aims. At a more basic level, the criticism focuses too much on history as used by historians and too little on history as used by lawyers.

The relationship between history and law is complex, in ways that stretch far beyond debates over originalism or “law-office history.” As Jenny Martinez suggested in her post, historians and lawyers both look to historical materials, but they use them in different ways for different purposes. Historians use historical materials to understand the past; their touchstones include change over time, context, causality, contingency, and complexity. As history, a survey of Supreme Court opinions and their surrounding circumstances may seem overly narrow and perhaps uninteresting. This seems to be Witt’s view.

But law uses historical materials differently. Particularly in a common law legal system, history serves as an anchor for the law, legitimating the law by tying it to the past. As such, history plays an important role in constructing law’s discursive space. Narratives about history provide a vehicle for explaining the abstract principles animating the legal system; narratives about the history of a particular law, good or bad, frame the possible arguments that can be made. Historical materials are used to create the narrative in Cover’s “Nomos and Narrative,” the justification in Dworkin’s “fit and justification.”

These narratives bear a resemblance to the histories written by historians, but they’re not the same. In contrast to the complexity sought by historians, these narratives impose simplicity. They are in essence “Imagined Histories,” or what John Reid has described as “forensic history.” Even if imagined, though, these narratives are essential to our system of law. It is in the narratives and counter-narratives of the law’s history – narratives of continuity, transformation, revolution – that we come to understand today legal and policy choices.

The historical material in this book needs to be understood in these terms. (Importantly, the editors never claim to be producing a work of history.) The book provides material that appropriately interrogates and complicates existing narratives while also providing material for new narratives and counter-narratives. What if the Court had continued to interpret treaties in light of principles of “good faith and liberal interpretation?” At its best, the book shines a light on familiar and less-familiar historical material that can help enrich our legal discourse, allowing for more complex, more nuanced debates over the role international law should be playing in our law.

A particularly good illustration of the book’s potential comes in the three essays in Part V on “International Law and the War on Terror,” already mentioned by Andrew Kent.  In his lead essay, David Golove constructs a counter-narrative in which the Court’s decisions in Hamdi, Hamdan, and Boumediene to expand detainee rights, expand judicial oversight, and overrule Executive treaty interpretations, “actually have stronger roots in traditional constitutional doctrine than has been widely appreciated.” (p. 564) Building off the book’s historical material, Golove revivifies a tradition of the “Just War Constitution,” a tradition that insisted that the conduct of war was subject to the rule of law, that the President had a duty to abide by the laws of war, and that courts had a role in supervising presidential compliance. As such, Golove’s narrative provides a means for conveying and legitimating a series of ideas about the meaning of the Constitution. Martin Flaherty, in his response, adds to this discussion by revising the narrative to weave in developments in criminal law.

But Michael Ramsey’s rejoinder, which stands by a more traditional narrative of these cases, also demonstrates how these narratives can enrich our discourse. Even as he argues that these cases represent a break from the Court’s traditional deference, he takes many of Golove’s insights on board. His account, recognizing that a just war tradition has played at least a rhetorical role in constraining prior Presidents, is more complex than it might otherwise have been. The result of the three narratives is a more sophisticated, more nuanced story about the role of the President and Court in maintaining the Constitution in wartime. Our discourse is richer as a result of the book’s efforts.

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