The Future and Past of U.S. Foreign Relations Law

By Flaherty, Martin S. | Law and Contemporary Problems, Autumn 2004 | Go to article overview

The Future and Past of U.S. Foreign Relations Law


Flaherty, Martin S., Law and Contemporary Problems


I

INTRODUCTION

Well before Iraq, the United States had carved for itself a reputation of a global power that tried not to concern itself with the rest of the globe, even, or perhaps especially, when it sent its armed forces abroad. The nation's recent experience in Iraq casts this paradox in still higher relief. As the war shows, the United States has never occupied a more commanding international position, nor a greater readiness to assert itself. Epithets such as "sole superpower," "hegemon," and "empire" now commonly describe the once isolated republic, whose first president warned of foreign entanglements. By contrast, the aftermath of the war suggests that, for better or worse, Americans make lousy imperialists thanks to our aversion to longstanding foreign commitments; and pretty much only for worse, remain inward-looking and ignorant of the societies that we so profoundly affect. (1)

Law imitates life overseas as well as at home. The increasing role that the United States plays in the world can only mean a correspondingly greater role for foreign affairs law in the U.S. legal community. As if on cue, the Supreme Court has recently cited international and comparative law materials to a striking, and all but unprecedented, degree. One result of the growing importance of foreign affairs law will be the renewed focus on who can legitimately make foreign policy: Congress, the President, or even the states. Most compelling here is the perennial issue of the war power, which happened not to surface with regard to the Iraq war, but which might, sooner or later, emerge in connection with a continued U.S. military presence. Another result of U.S. engagement will be the consideration of how international law--treaties, executive

agreements, transnational authorities--applies domestically. Slowly and not entirely surely the U.S. has determined that it cannot avoid becoming an international citizen. The pressures and opportunities of globalization make participation in multilateral regimes such as NAFTA, the IMF, the WTO, not to mention the U.N. Commission on Human Rights, the U.N. Human Rights Committee, and the United Nations itself harder to avoid. Concurrently, therefore, there will be an increased focus on U.S. foreign affairs law at future conferences on constitutional law. (2)

Just as U.S. foreign policy ventures abroad while looking inward, so too does U.S. foreign affairs law. Not long ago a group of young, original, and energetic scholars set out to question many of the internationalist premises in constitutional law that have prevailed in the field at least since World War II. (3) One prominent scholar sympathetic to the overall trend heralded this development as the potential genesis of a "new American foreign affairs law." (4) Critics have been less charitable, offering terms such as "new sovereigntists." (5) As these labels imply, one hallmark of the new foreign affairs law has been an effort to revive limitations on the ability of federal institutions to make international commitments, or recognize international standards, that would have binding domestic effects, especially in the face of claims on behalf of states' rights. This revival of state-oriented federalism has proceeded hand-in-hand with a resurgence of executive-oriented separation of powers advocacy. (6) Though less obviously inward looking--the standard assumption has long been that presidents are more interventionist than the other branches--the impetus for this trend stems more from assumptions about the role of the executive in the U.S. constitutional order than from any assumptions about the president's likely performance in foreign affairs.

To a remarkable degree, recent foreign affairs scholarship has not merely looked inward, but backward. Perhaps even more so than domestic constitutional law, its conclusions rest upon originalism outright or draw heavily upon ostensible understandings at the time of the Founding. …

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