Rebranding Revisionism

Curtis Bradley has posted an advance version of a forthcoming piece in the Supreme Court Review on last term’s decision in Sanchez-Llamas v. Oregon. It’s well worth a close read, although I think it ultimately makes too much out of a case that is at best way-station material. The piece for instance argues that Sanchez-Llamas is more important than Hamdan. Now Hamdan is hardly aging very well (and will clearly not be remembered as the most important decision on presidential power, ever), and may not foretell where the Roberts Court is going (which is the gist of Curt’s point). But the decision did buck the executive branch in an unprecedented fashion, on a core security issue, and as a historical matter it will still loom larger than Sanchez-Llamas.



Although it looks a little like an exercise in tea-leaf reading (not that there’s anything particularly unusual about that in analyzing the Court’s work), the essay argues that on the one hand Sanchez-Llamas presages more substantial limits on the federal judicial power, in the context of federalism, the incorporation of customary international law, and application of the Charming Betsy canon. On the other, the decision evidences a protective role for the courts against delegations to international institutions. Although the essay disclaims suggestions that “delegations of adjudicative authority to international institutions are inherently problematic or that the Supreme Court will impose significant constitutional restraints on the ability of the US to agree to such delegations,” it trots out the usual complaints regarding transparency and accountability at the international level on the way to framing domestic courts as a “sub-vertical check” on international decisionmaking.



But perhaps the more significant take-away from the article is its understandable effort to give revisionism a new name — “constitutionalism”. “Revisionism” is hardly a cry by which to rouse the troops out of the trenches. It seems slightly suspect, insofar as it orients the school relative to some other one (revising what, exactly?) and offers no substantive cue (could just as well be progressive as conservative). As an intellectual history, I think “revisionism” pretty accurate, insofar as Bradley, Jack Goldsmith and others were focused on bringing down the existing conventional wisdom rather than building something from the ground up. But revisionism is now well enough established that it warrants a non-derivative label. I’ve suggested “sovereigntism“, which I think pretty accurately captures its unifying premise. But that was hardly intended as a friendly amendment, and so it’s hardly surprising that the revisionists have rejected that tag.



So, can the revisionists refashion themselves as “constitutionalists”? Curt’s piece justifies the label insofar as the approach sees the courts as agents of the domestic legal system, where “internationalists” see them as advancing the international order, as part of the global community of courts. I take the point, but the problem here is that everyone ultimately conceives themselves to be constitutionalist — in the sense of maintaining positions that are consistent with the Constitution —, even those who see federal courts as an entry point for the incorporation of international law. I don’t think the discursive high ground will be so easily captured.