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The Constitution for its Third Century: Foreign Affairs

Published online by Cambridge University Press:  27 February 2017

Louis Henkin
Louis Henkin*
Affiliation:
Columbia University
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Extract

The bicentennial of the United States Constitution has been marked by much celebration and some stocktaking. The Framers have been fully—if not fulsomely—praised, and there appears to be general enthusiasm about the legacy they left us. However, as regards the constitutional dispositions for the conduct of foreign affairs, there appears to have been little attention to the Framers and little inclination to celebrate what they ordained. Few have taken this occasion to expose how we got where we are from where they were; efforts to take stock have been hampered by uncertainty and shouted down in controversy.

Type
Preface
Information
American Journal of International Law , Volume 83 , Issue 4 , October 1989 , pp. 713 - 717
Copyright
Copyright © American Society of International Law 1989

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References

1 See generally A. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins (1976), and vol. 2 of that study, covering the years 1829–1901, by Henry B. Cox (1984).

2 See generally E. Corwin, The President: Office and Powers (4th rev. ed. 1957), and id. (Bland, Hindson & Peltason 5th rev. ed. 1984); Q. Wright, The Control of American Foreign Relations (1922); L. Henkin, Foreign Affairs and The Constitution (1972).

3 L. Henkin, supra note 2, ch. IV.

4 See generally Restatement (Third) of Foreign Relations Law of The United States (1987) [hereinafter Restatement].

5 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315–18 (1936).

6 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–37 (1952) (Jackson, J., concurring). Justice Jackson described the zone as one in which the President and Congress “may have concurrent authority, or in which its distribution is uncertain.” Id.

7 See, e.g., The ABM Treaty and the Constitution: Hearings Before the Senate Comms. on Foreign Relations and on the Judiciary, 100th Cong., 1st Sess. (1989); see also S. Exec. Rep. No. 15, 100th Cong., 2d Sess. 87–108 (1988), and id., App. A, at 437–48 (report on the INF Treaty).

8 Even after INS v. Chadha, 462 U.S. 919 (1983), and the Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297, there may be something still to be said about legislative veto and presidential impoundment where foreign affairs are concerned. See, e.g., Pomerance, United States Foreign Relations Law after Chadha, 15 Cal. W. Int’l L.J. 201 (1985).

9 See Agora: May the President Violate Customary International Law?, 80 AJIL 915 (1986); 80 ASIL Proc. 297–308 (1986); see also Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 878–86 (1987).

10 The phrase is Justice Holmes’s used in denying such “radiation” in Missouri v. Holland, 252 U.S. 416, 434 (1920). Compare National League of Cities v. Usery, 426 U.S. 833 (1976), overruled, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). The Restatement, supra note 4, §302 comment d and Reporters’ Note 3, rejects the suggestion that the Tenth Amendment radiates limitations on the treaty power.

11 See, e.g., Restatement, supra note 4, §402 comment j, and §403 Reporters’ Note 9; and see the essay by Lowenfeld at p. 880 infra.

12 Compare Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936); see Restatement, supra note 4, §479 Reporters’ Note 7. But cf. the discussion of alternatives to extradition, id. §432 Reporters’ Note 2, and §433 Reporters’ Note 3.

13 Whitney v. Robertson, 124 U.S. 190 (1888); Chinese Exclusion Case, 130 U.S. 581, 600 (1889).

14 See Henkin, supra note 9, at 870–72; and Lexical Priority or “Political Question”: A Response, 101 Harv. L. Rev. 524, 531–33 (1987).

15 See the essay by Aleinikoffat p. 862 infra.

16 Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, 27 Wm. & Mary L. Rev. 11 (1985).

17 see note 14 supra.

18 For an earlier essay on the subject, see Morris, Forging the Union Reconsidered: A Historical Refutation of State Sovereignty over Seabeds, 74 Colum. L. Rev. 1056 (1974).

19 I have suggested that those uncertainties, the frictions of the treaty power, and the fictions of the judicial role should be reexamined in the light of the commitment to constitutionalism with which the Framers began, and the commitment to democracy which our generations have finally made. See Constitutionalism, Democracy, and Foreign Affairs (the Cooley Lectures 1988, scheduled to be published in 1990).