The Historical Turn in the Constitutional Law of Foreign Relations

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This essay analyzes the historical turn in the constitutional law of foreign relations. As background, I begin with some assertions about the historical turn in constitutional law scholarship generally. These introductory comments deserve more extensive discussion and support, but are being telescoped for reasons of space.

Contemporary constitutional law scholarship has undergone a decisive historical turn, resulting in the subject matter and methodologies of history occupying a more prominent place in the legal academy than they have held since the 1920s. An important reason for this turn is the peculiar fragility of constitutional law scholarship, which has manifested itself in the extremely limited shelf-life of monographs in the field.1 The fragility of constitutional law scholarship has been a function of its orientation toward "resolving" contemporary issues in constitutional law. At bottom, the average constitutional law monograph consists of a series of theoretical justifications for deciding given cases in a given fashion; when those cases, and their issues, cease to be of central focus, the case-dependency of the theory becomes revealed. From this perspective, the historical turn in constitutional scholarship can be seen as an effort in extending the time frame, and scope, of constitutional inquiry, and in so doing extending the shelf-life of scholarly work.

The rise of historical inquiry in constitutional scholarship has unavoidably been accompanied by the infiltration of historical methodologies. Here two problems immediately surface. One involves the relationship of historical inquiry to the purposive character of legal scholarship. To be influential, legal scholarship must have a "payoff"-contemporary normative implications that resonate. Traditional canons of historical writing de-emphasize such pragmatic concerns, maintaining that purposive historical inquiry results in a "presentist" bias that distorts the meaning of sources. One difficulty, therefore, is how to restrain purposivism in historically grounded constitutional scholarship. A second difficulty is how to sustain a "payoff" for such work if purposivism is constrained-how to prevent historical inquiry from being simply an antiquarian exercise.

Elsewhere I have outlined a methodological approach to these sets of problems, one which concedes the contemporary dimensions of any historical inquiry but seeks to constrain purposivism through a posture of "detachment" that requires the historian to avoid rushing toward contemporary payoffs in evaluating the actions of historical actors with necessarily different sensibilities. I will not elaborate upon this approach here, except to say that an especially important "payoff" of historical inquiry, one that has direct implications for constitutional law scholarship, is the subversive effect on contemporary conventional wisdom of forays into the starting assumptions of past generations. Often a recreation of those assumptions reveals an intellectual universe quite foreign to our own, and has the effect of reminding us that other educated and sensible people, living at a different point in time, operated within a radically different epistemological framework. This can reach us about the contingency of our own belief structures, and contribute to efforts to detach ourselves from conventional legal wisdom or to revise intellectual precepts we take for granted.

My focus in this essay is on one set of conventional wisdom, animated by one set of starting precepts, in the area of constitutional foreign relations law. The set of starting precepts assumes a separation of the constitutional law of foreign relations from domestic constitutional law. And the conventional wisdom is that this separation has always existed in American constitutional jurisprudence. The topic provides us with a notorious example of purposive historical inquiry, of historical analysis overwhelmed by contemporary payoffs. …