Academic

Download of the Week

By Lawrence Solum

The Download of the Week is An Originalism for Foreign Affairs? by Ingrid B. Wuerth.  Here is the abstract:

Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short article describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it comes to many of constitutional issues that arise in the foreign affairs area. Originalists could clarify and strengthen their normative arguments if they focused greater attention on foreign affairs, particularly non-judicial constitutional interpretation, the relationship between executive and congressional power, and consequentialist problems that arise in this context. For foreign relations scholars, particularly those focused on history, this contribution is meant to encourage greater engagement with the methodology of contemporary constitutional interpretation.

And from the text:

Today?s originalists like Barnett, Whittington, and Professor Balkin . . . acknowledge that original meaning sometimes runs out, and then someone (e.g., a judge, executive branch official, the general public) does something else; Barnett and Whittington call the something else ?constitutional construction. This has obvious importance for the difficulties discussed in the preceding section: original public meaning may be under-determinative because the text in question is vague, ambiguous, or leaves gaps. It may also ease some of the tension between Barnett?s and Whittington?s theories of originalism and foreign affairs; much of that tension is generated by executive power, about which neither says much of anything. Moreover, a sufficiently plastic originalism might permit outcomes that pragmatists think are correct.

Consider the first example set out at the beginning of the paper, involving the President?s power to use force in light of the Declare War Clause. Assuming, as the first example does, that original public meaning of the Declare War Clause was to give Congress (not the President) the power to initiate hostilities through the use of force, then Barnett?s theory requires adherence to original meaning?and thus may require fundamental changes the current balance of power between Congress, the President, and the courts?even when such adherence appears to have nothing to do with individual freedom. Whittington?s theory appears to require the same result, which is related to the popular sovereignty rationale he advances. The difficulty here is that the executive branch must also interpret the Constitution?s limits on its own authority and it is unclear if (and why or why not) the courts are obligated to enforce the original boundaries of the President?s authority. But each theory acknowledges that original meaning is sometimes under-determinative; if that is the case with the Declare War Clause then these results are not required. Indeed, under these circumstances the executive branch is not limited to originalism?constitutional construction ?fills the unavoidable gaps in constitutional meaning when interpretation has reached its limits.

Highly recommended.  This is the best scholarship I've seen that grapples with the implications of the New Originalism for constitutional power and foreign affairs.  Download it while its hot!

Full post as published by Legal Theory Blog on May 24, 2008 (boomark / email).