Author Archive for
Martin Flaherty

A Toast for Lou Henkin

by Martin Flaherty

[Martin Flaherty is the Leitner Family Professor of International Human Rights and Director of the Leitner Center for International Law and Justice at Fordham Law School. He is a visiting professor at St. John’s Law School Fall 2010.]

Louis Henkin influenced – and will continue to influence – countless lives in untold ways. Not least, in fact perhaps most, are those persons throughout the world and in the United States who benefit from the prospect of their fundamental rights receiving a measure of recognition. Of course most of these persons will never know of Lou or their debt to him. I consider myself infinitely grace to be in the still considerable number of people who did know Lou directly. My debt is that much greater.

My association with Lou did not begin the way so many others did, as a student or colleague or human rights advocate. I frankly had never heard of him until I became of freshman counselor for a group that included his son, David. Back then I was a graduate student with the goal of teaching colonial history. The Henkins did not shift my goal to the law. (In fact David, perhaps because the law held no mysteries, has since become a leading historian at Berkeley.) But when my goals did shift, the path became clear. David, brilliant yet always playful, was a good advertisement for his father. Lou was a stellar poster prof for Columbia. So, having applied nowhere else, it was off to Morningside Heights I went.

I was immediately disappointed, though certainly not by Lou. To the contrary, he invited me to his office the first week and listened to whatever half-considered career plans I had. His advice to me about first-year, delivered with a twinkle, was, “Do well!” Instead what disappointed me was I did not get assigned Lou for Constitutional Law. My solution was simply to audit his classes. The experience was breathtaking. He seemed to cover five cases to every one in any of my other classes. Yet he didn’t skimp on critique or analysis, though he briskly made it clear why in his view a given decision made sense or did not. I thought I had the best of both worlds: an encyclopedic survey without Socratic examination. Then one day he called on me in passing. I’m not sure whether I “did well.” But I made sure that I never treated his course as a simple audit again, which I’m pretty sure was the real point of his query.

But the truly life-changing experience was Lou teaching international human rights. This education was in truth a family affair. It was Alice Henkin who along with Jack and Deborah Greenberg, were running one of the country’s first program’s giving law students a chance to serve as interns with NGOs around the world. As a result I was able to work for a summer in Belfast with a leading group while the “Troubles” made the city a grim primer for both human rights violations and advocacy. After that, there was no turning back. Fortunately, the first place to turn to were Lou’s classes. As with Con Law, these were encyclopedic and rigorous. But they also had a measure passion that went beyond what I’d experience before. Though ever scholarly and avuncular, Lou also imparted a deep and ardent sense of rage at injustice, and empathy for its victims.

That example remains indelible. Rarely, if ever, have I encountered the combination of intellectual rigor with an urgency to change the world for the better. Yet with all that he somehow avoided the trap of zealotry. My first encounter of him was as a family man, and that will always be my primary image. Over the years we’d always first talk about how things were going in his family and in mine. In fact I’ve rarely seen parents more proud than when David gave a reading for one of his newly-published books at the Columbia Bookstore. He was also unfailingly kind to his extended family of hundreds of former students and colleagues. Lou was always there for further teaching on points of law, advice on how to set up a human rights program, of simply general counseling. And, until the last few years, his energy was prodigious. The writing and teaching speaks for itself. But, more concretely, I remember even after I graduated meeting him at his office, and then him bounding down eight flights of stairs before we hit the street level for lunch.

I’ll miss those lunches, the phone conversations, the meetings at conferences, lectures, and human rights sessions. I am and will be forever grateful, though, for Lou Henkin’s scholarship, teaching, advice, and most of all, the inspiration. That is one toast that can be made around the world.

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.

Opinio Juris Symposium: Can History Determine Textual Meaning?

by Martin Flaherty

[We are pleased to have Martin S. Flaherty as a second participant in the discussion today. Professor Flaherty is the Leitner Family Professor of International Law at Fordham Law School and a Visiting Professor at the Woodrow Wilson School of Public & International Affairs at Princeton University. A widely published scholar in the fields of constitutional law and history, foreign relations, and international human rights law, we are thrilled to have his comments here today.]

Mike Ramsey’s book, The Constitution’s Text in Foreign Affairs, will without question be a major and outstanding contribution to the field of U.S. foreign affairs law. The field itself has never been more important yet is only now benefiting from new, comprehensive, theoretical monographs. The current importance of U.S. foreign affairs law needs little elaboration. Iraq, Afghanistan, the “Global War on Terror,” ongoing detentions in Guantanamo Bar, not to mention globalization, the International Criminal Court, and human rights means that judges, lawyers, and citizens will need to examine this subject as never before. There are, however, almost no works that attempt to present a unified theory of foreign affairs law in the manner commonly seen on the domestic front. Probably the closet thing remains Louis Henkin’s magisterial Foreign Affairs and the Constitution, but his volume is more in the nature of a treatise than a work of constitutional theory.

Ramsey’s approach is original. As he indicates, the conventional wisdom among scholars who agree on little else is that reliance on the Constitution’s text to resolve foreign affairs law disputes is all but quixotic. Ramsey nonetheless offers an approach which points toward answers in an array of current and longstanding disputes that relies on text to a great extent. That said, he admits he must also rely upon history, if only because the meaning of various key texts has been lost. Nonetheless, his reliance on text appears always to remain the point of departure and the book never loses cite of its textual moorings notwithstanding its excursions into history.

The theory that results from this approach is coherent, if ultimately problematic. A certain degree of foreign affairs scholarship, to be sure, also reflects a certain coherence, whether Harold Koh’s emphasis on Congressional power or John Yoo’s focus on executive authority. Much if not most foreign affairs scholarship nonetheless tends to be piecemeal. Even so great a theorist as John Hart Ely, for example, in War and Responsibility did not offer a unified vision of U.S. foreign affairs, but instead concentrated on one aspect, the war power. Ramsey’s book, by contrast, applies an integrated separation of powers model across the board to areas ranging from detention, treaty termination, executive agreements, federalism, war, and torture. Whether one agrees with its prescriptions or not (and in many cases I don’t), it must be said that the theory he constructs rests upon concept that is readily grasped yet wide-ranging.

The results that Ramsey’s approach indicates are surprisingly balanced, both in the context of foreign affairs scholarship and politics more generally. Many of his doctrinal conclusions would enervate “liberals.” The President, for example, would be able to fight undeclared “defensive” wars, to undertake even provocative actions short of war, and to terminate treaties under their terms without Senate approval. Likewise, the powers of the states would not be affected by executive agreements, presidential orders, and customary international law. Yet many of Ramsey’s prescriptions would likely alienate “conservatives.” The President’s “executive” foreign affairs authority would have to be tethered to some enactment, whether treaty or statute. Thus, the President could not unilaterally seize steel mills, order detention or torture, or terminate treaties that did not so allow under their terms. In addition, Ramsey also largely defends a role for the courts in foreign affairs. Finally, the book rightly argues that the exercise of Constitutional authority abroad can be done only subject to the Constitution’s limitations on power, adjusted to various special circumstances overseas.

My major significant qualm about The Constitution’s Text in Foreign Affairs – and fair warning, it is significant — is its use of history.

Online Workshop Comment: Where Sosa is Unclear; Where Sosa is Clear

by Martin Flaherty

[Opinio Juris note: We are delighted that Martin Flaherty, Leitner Family Professor of Law at Fordham Law School and a leading scholar in the fields of human rights and foreign relations law, has sent along the following thoughts on the Bradley-Goldsmith-Moore article.]

This is a rich and stimulating exchange, and I thank all concerned for their contributions. My general reaction is to register a degree of puzzlement with regard first, to the question of whether Federal courts may fashion Federal common law derived from CIL in the absence of authorization from the so-called political branches; and second, to agree strongly with Beth Stephens about Sosa ratifying most post-Filartiga ATS jurisprudence.

First, I believe that Sosa simply leaves open the question about the status of CIL absent authorization. To point out the obvious, that question wasn’t before the Court, nor was it a topic of sustained discussion in dicta. Thus we are left with making inferences from limited evidence. On one hand, Sosa indeed adopts sub silentio most of Curt and Jack’s prudential concerns, which themselves relate to democratic approval and/or foreign relations concerns. It would follow that such concerns would be even greater in the absence of a statute such as the ATS. To infer further that this means rejection of the modern position strikes me as over-arguing. On the other hand, the majority’s handful of reference’s to Sabbatino indicate both a) that the courts may make Federal common law on international matters post-Erie [noting the Court has assumed the competence to fashion judicial rules of decision of particular importance in foreign affairs, though noting a general practice of looking for authorization, slip.op. at 32], and might even still apply international law directly [n. 18]. Fairly read, I read Sosa leaving the status of CIL without more open, and find unconvincing the arguments that it in effect rejects the modern position.

Second, Sosa’s standard as to what types of CIL claims would pass muster under the ATS features the rhetoric of extreme prudence with the realty of ratifying the post-Filartiga litigation that had developed to that point. The Court cashes out the prudential concerns with two standards: general assent (of “civilized” nations) and specificity of the claim. The first appears to be a conflation of standard CIL analysis, unless the Court unwittingly meant to jettison the opinio juris inquiry. The second appears home-grown, though as Beth Stephens notes, articulated in Filartiga itself. It is hard to see how even the specificity requirement would undermine such jus cogens claims such as torture, extra-judicial killing, prolonged arbitrary arrest and detention, which have been the core of ATS litigation. I readily admit that the standard may present real difficulties in other regards, e.g. corporate complicity. That is not to say the standard inevitably results in rejecting UNOCAL claims, or that it should. It is simply to argue that the claims that have been established to date appear comparatively safe.