Professor Kent’s additional comments helpfully clarify his textual argument on the power to respond to attacks. I now see (I think) that he is relying on a negative implication: the President must not have this power because it would vitiate important powers of Congress. I do think this is a more promising approach than trying to jam the...
Russia has been busily working to take possession of half of the Arctic Sea (or at least the seabeds under half of the Arctic Sea). In a dramatic mission covered heavily by Russian television, the Russian government has planted a titanium Russian flag on the seabed underneath the Arctic Sea. (I'm still looking for photos of the flag on...
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...
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...
Jack Goldsmith had this op-ed in yesterday's FT, in which he argues a convergence on anti-terror thinking among Americans and Europeans. The Europeans, on the one hand, appear now to understand that ordinary criminal processes won't do the trick, where the US is coming to understand that anti-terror practices will be subject to law. Here's the money graf:These...
One of my major purposes in discussing Professor Ramsey’s treatment of the scope of the president’s power to respond to attacks was to suggest that here, on this topic, his book may not meet its goal of giving dispositive interpretive weight to the written constitutional text as understood by Americans at the time of ratification. To the extent, then,...
I’ll join the chorus praising Michael Ramsey’s work, both the book The Constitution’s Text in Foreign Affairs and his scholarship over the course of more than a decade. Mike’s is an important and distinctive voice in the foreign relations law community. It is refreshingly agenda-free. As Martin Flaherty points out, his conclusions don’t line up neatly...
While we are on the subject of Michael Ramsey's book, I thought I would note that Justice Samuel Alito is currently teaching at Pepperdine Law School a two-week seminar from July 30 to August 10 on the War Powers Clause. The public announcement about the course is available here. According to the announcement, "Justice Alito indicated that the...
I would like to push the conversation about Mike Ramsey’s new book to a slightly different topic. What does the Constitution’s text tell us about the status of treaties in the domestic U.S. legal system? As many of our readers know, Article VI of the U.S. Constitution makes treaties the “supreme law of the land,” but conventional wisdom...
I have some more detailed thoughts on the postings by Professors Kent, Flaherty, and Ramsey but I did want to note one news item today that is actually relevant to the discussion between Professors Ramsey and Kent about the President's ability to use military force to respond to attacks. In a major national security address, presidential candidate Barack Obama called...
Professor Lederman asks in a comment to Professor Kent’s post if we could clarify our disagreement on the President's power to respond to attacks. Briefly, here is how I understand it. I think both of us agree: (1) That Congress has the ultimate control over the U.S. response to an attack, in that it can limit the response by...
Thanks to Professors Flaherty and Kent for their insightful comments. Both of them have done great prior work in illuminating the Constitution’s historical understanding, and I continue to learn from them. Professor Flaherty’s cautions about history’s ambiguities must always be kept in mind in attempting a project like this. I’ve tried to be clear in the book that I...
