Faculty View

For those interested in the interplay among history, politics and law, the history of U.S. foreign relations law is a fertile area for study. In a presentation to the School of Law faculty, Professor David Strauss, the keynote speaker the 2007 Childress Lecture, suggested that originalism is a methodology for “outsiders.” This claim is especially true with respect to constitutional foreign affairs law. In recent academic debates related to the Constitution and foreign affairs, “liberals” have tended to make originalist arguments to support their positions, whereas “conservatives” often invoke changed circumstances to defend the concentration of foreign affairs power in the federal executive branch. In the past few years, the U.S. Supreme Court has decided several high-profile cases in which litigants have asserted that various sources of domestic and international law constrain the range of policy options available to the government in pursuing U.S. foreign policy objectives.

These themes—original understanding, changed circumstances and the constitutional distribution of power over foreign affairs—will feature prominently during a day-long symposium, “The Use and Misuse of History in U.S. Foreign Relations Law,” that the School of Law will host on Friday, March 7, 2008. The symposium will bring together leading scholars in the fields of legal history and U.S. foreign relations law. Symposium papers will be published in a special issue of the Saint Louis University Law Journal.

The topic of the symposium relates to my ongoing historical research and to my work as an advocate in cases recently decided by, and currently pending before, the U.S. Supreme Court. For example, I co-authored an amicus brief in Hamdan vs. Rumsfeld, 126 S. Ct. 2749 (2006), a case in which the Court rejected the use of military commissions to conduct trials of detainees at Guantanamo Bay. The Hamdan majority cited the brief, a copy of which is available here. Additionally, I assisted with the preparation of an amicus brief in Boumediene vs. Bush, another Guantanamo case currently pending before the Supreme Court. I also drew on my historical research to draft an amicus brief in Sanchez-Llamas vs. Oregon, 126 S. Ct. 2669 (2006), a case that required the Supreme Court to consider the domestic effects of an International Court of Justice decision in cases where foreign criminal defendants were denied their rights under the Vienna Convention on Consular Relations (VCCR). Another VCCR case, Medellin vs. Texas, is currently pending before the Supreme Court. For my commentary on Medellin, you can go to the Texas International Law Journal web site, http://tilj.org/forum/.

The symposium will be organized around four panels, each of which will focus on one main paper. Ingrid Wuerth, Professor of Law at Vanderbilt University, will present the first paper, “Foreign Affairs and the New Originalism.” This paper considers several foreign affairs issues from the perspective of what has been dubbed the “New Originalism.” In particular, it will consider how new originalism, in its several different forms, might address the growth in presidential power in foreign affairs and the role that current executive branch practice plays in ascertaining constitutional meaning. Professor Stephen Vladeck of American University and one other still-to-be-named scholar will provide commentary on Professor Wuerth’s paper.

Professor Thomas Lee, Director of International Studies at Fordham Law School, will address the consequences of the Civil War for the development of U.S. foreign relations law in his presentation, “The Civil War in U.S. Foreign Relations Law: A Dress Rehearsal for Twentieth Century Transformations.” The proposed thesis is that the Civil War occasioned significant departures from prior practice, but that these departures were quickly “papered over” after the war, only to remain as seeds for other changes in foreign relations law that took place in the 20th century. Professors David Golove from New York University and Deborah Pearlstein from Princeton will be the commentators for this portion of the symposium.

An examination of the context of early constitutional debates over executive power and the Take Care Clause is the topic of the third presentation, “Taking Care of John Marshall’s Ghost: Treaties, Executive Power and the Take Care Clause,” given by Professor Michael Van Alstine, the Associate Dean for Research and Faculty Development at the University of Maryland School of Law. He also will explore the significance of those debates for the meaning of the president’s responsibility to “take Care that the Laws be faithfully executed.” Professors Martin Flaherty of Fordham University and Martin Lederman of Georgetown University will serve as commentators.

I will present the final paper of the day, “Judicial Foreign Policy: Lessons from the 1790s,” which will examine judicial decision-making in foreign affairs cases in the 1790s. These cases suggest that the Founders believed the executive should defer to the judiciary in at least some cases where foreign affairs controversies are intimately bound up with questions involving individual rights. Professors Arthur Mark Weisburd from the University of North Carolina School of Law and Daniel Hulsebosch from New York University School of Law will be the commentators.

With this schedule of papers and all-star cast of scholars, this symposium at the School of Law will be a day of intensive, fascinating discussions that will draw on the lessons of history to shed light on current constitutional controversies related to U.S. foreign relations law.