Foreign Affairs and the United States Constitution

Foreign Affairs and the United States Constitution

Foreign Affairs and the United States Constitution

Foreign Affairs and the United States Constitution

Synopsis

This study examines the constitutional jurisprudence of the United States as it relates to US foreign affairs. Illumination is offered on topics such as relations between Congress and the President as they relate to the use of military force.

Excerpt

Volumes about the American Constitution and about American foreign relations abound, but they are two different mountains of books. Those that deal with the Constitution say little about American foreign relations; the others expound, scrutinize, dissect, and criticize the international relations, foreign policy, and the 'foreign-policy-making process' of the United States, but the controlling relevance of the Constitution is roundly ignored. A constitutional crisis in the conduct of foreign relations besets every generation and fills the journals for a brief time, but how the Constitution governs the conduct of foreign relations does not receive sustained attention or extended exposition.

This was not always so. In earlier days, the constitutional law of American foreign affairs was one, important, integral part of constitutional debate and study. The foreign relations of the future republic were prominent concerns in the deliberations of the Constitutional Convention and in the debates that raged during ratification. They were the subject of essays by Madison, Hamilton, and Jay when they wrote the Federalist Papers to promote acceptance of the new Constitution, and of heated polemics later when Hamilton and Madison (and Hamilton and Jefferson) came to see so differently the Constitution and the government it had established. Constitutional issues in the conduct of foreign affairs were disputed learnedly in Presidential messages, Congressional debates, opinions of attorneys-general and writings of leading lawyers. The Supreme Court Reports carried frequent, extended essays on national sovereignty, the law of nations, executive and legislative powers, the Treaty Power, the special role of the courts in foreign affairs. The law of foreign relations received many pages from early commentators on the Constitution (e.g., Story) and in the nineteenth and early twentieth century treatises (Cooley, Willoughby).

Perhaps the constitutional law of American foreign affairs began to suffer scholarly neglect when, for reasons I suggest later, constitutional lawyers increasingly concerned themselves only with what the Supreme Court was doing, while the Court's contributions in foreign affairs became less frequent. Perhaps it suffered when 'public law' expanded to claim much besides constitutional law and international law, and these two fields themselves grew apace and developed into separate expertises . . .

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