As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I’ve endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward.
We are pleased that Professor Ramsey agrees with our overarching proposition that the practice of making political commitments should be subject to analysis on a constitutional dimension. Our disagreements, therefore, primarily lie in constitutional methodology. How we define political commitments goes a long way toward resolving the differences between our analysis and Professor Ramsey’s. To the extent that Professor Ramsey suggests that we are re-packaging “non-binding personal pledges by the President” as political commitments, we emphasize that the nation, not the President, incurs the obligation. Political commitments came out of the late nineteenth and early twentieth century practice of entering into gentlemen’s agreement, but that was a much more personal phenomenon—binding its makers, not the state. As the practice developed, it became more of a vehicle for encompassing state commitments. The Newfoundland Fishery Agreement and Horseshoe Reef Agreement were hardly the stuff of personal promises, and political commitments now include the Helsinki Accords, the NATO-Russia Founding Act, and the London Guidelines. All of these implicate national credibility, not that of an individual President. Personal promises by the President and other heads of state, of course, remain, but we wanted to analyze the distinct concept of political commitments that purport to represent the agreement of a state or its agencies. With that clarification in mind, I hope to answer Professor Ramsey’s more substantive comments.
1. Political commitments as a constitutional work-around.
Professor Ramsey situates political commitments in relation to other executive acts by noting that they are one tool at the President’s disposal to avoid the rigidity of the treaty-making process. We do not disagree that political commitments offer a useful, flexible tool to avoid the Constitution’s rigidity in making treaties. But, the ability to substitute this tool in place of a treaty is all the more reason to place some constitutional checks on their use. In this way, Professor Ramsey’s critique partially answers Professor Swaine’s observation that we “need a theory of constitutional proximity (or an argument about the dynamic effects of leaving substitutes unregulated).” If unregulated, political commitments may sometimes facilitate end-runs around constitutional mechanisms, distorting democratic processes and the rule of law (for example, FDR completed the Atlantic Charter as a political commitment in part to avoid any need for Senate approval).