Opinio Juris

The first is the President’s foreign affairs powers. The book finds that in eighteenth-century writing, the phrase “executive power” generally included managing relations with other nations. So when Article II, Section 1 gave the President “executive Power,” that gave authority over matters such as diplomacy, foreign communications, etc. (just as Article III, Section 1's grant of “judicial Power” to U.S. courts gave authority to decide cases). But this grant included only what was then called “executive”: for example, it didn’t include changing legal rights and duties in pursuit of foreign affairs goals. That was “legislative” power. So the Steel Seizure case rightly said that Truman could not claim “executive Power” to seize property within the U.S., even in matters directly affecting foreign affairs.

A second example is war-initiation power. Although Article II gave the President “executive” power generally, its framers didn’t want to give the President everything that had been called “executive,” so they textually assigned some powers elsewhere. For example, they gave Congress power “to declare War.” Modern interpreters struggle with this phrase, because we think of it as meaning formal declarations; the Constitution may appear not to address “undeclared” wars (where no formal proclamation is issued). But taken in context, the language is clear. Eighteenth-century writers said that war could be “declared” by actions, including armed attacks, as well as proclamations. And after ratification, Americans appeared to think the President lacked war-initiation power, showing that they understood “declare” to include declaring by action.

The third example is international law’s constitutional status. The Constitution says little about it directly – only that Congress can “define and punish” offenses against the law of nations. Read literally, that seems not to give the law of nations any place other than as Congress enacts. But founding-era Americans had a robust idea of the law of nations, so an abstract intent-oriented approach might instead think their Constitution embraced international law quite broadly. The historical text-based approach yields an intermediate position. The law of nations’ central place in founding-era thought suggests that it came within some of the Constitution’s general phrases. For example, Article III’s “judicial power” likely gave courts power to use the law of nations to decide cases in appropriate circumstances, because Anglo-American courts traditionally had this power, and the President’s duty to assure that “the Laws” are faithfully executed probably included the law of nations. On the other hand, the framers easily could have, but did not, make the law of nations part of Article VI’s “supreme Law of the Land” (which is defined specifically in a way that excludes it).

In sum, I think that the book’s historical textualism gives a more complete and accurate account of the Constitution’s foreign affairs structure, as it was originally understood, than either plain meaning or abstract intent-oriented approaches. It surely can’t resolve everything, and on many issues it can only say what seems the more likely answer. But I think it shows the founders’ foreign affairs Constitution to be more accessible and understandable than is often supposed.

Of course, this only begins the discussion, because it doesn’t say how we should use these conclusions in constitutional debate today. I remain conflicted on that point. I tend to think the framers got most important foreign affairs allocations right, so I have an instinct to say that we should stick with their directions. I’m also not sure, if we wanted to adopt a different approach, how we would agree on the answers (especially without more Supreme Court direction than foreign affairs usually gets). At the same time, though, I do think they got some things wrong (or, right for their time but not so right for ours), and writing the book has made me appreciate the tension when history points an uncomfortable way.

I look forward to comments and criticism.

• In a few key instances (247 and 254 n.23), Ramsey’s conclusions about constitutional language turn on contestable takes on rules of the law of nations.
• There is very weak post-ratification support for the claim that Congress’s war powers should be strictly construed in favor of the President. Ramsey has convinced me (even before this book) that his residual “executive power” rule is the correct way to understand the Constitution’s allocation of diplomatic and communicative foreign policy powers. But war is a different matter. I believe the only prominent Founder who directly expressed Ramsey’s view was Hamilton—an outlier on issues of executive power, as Ramsey concedes. Dozens of prominent Founders understood the Constitution to dictate the opposite of the Hamilton-Ramsey rule. The Constitution’s Text suggests that Jefferson’s famous 1790 opinion supports the Hamilton-Ramsey rule (56, 82, 241); but because Jefferson was discussing only the diplomatic powers of President, not war powers, I think Ramsey reads too much into it. As we know from Jefferson’s other writings and public statements – e.g., his 1790 report on Barbary states, 1792 draft presidential message about Indian hostilities, 1793 writings about the Neutrality Proclamation, 1793 cabinet statement about an attack on the Creek Indians, 1801 message to Congress about the Barbary pirates, 1805 message to Congress about Spanish incursions into Louisiana, and 1807 comments and actions about the British attack on the U.S. vessel Chesapeake – Jefferson did not think that the vesting of the power to declare war in Congress should be strictly construed in favor of the Executive. Rather, he thought more or less the exact opposite.
• There is also weak post-ratification support for the claim that “Once war begins, the declare-war clause no longer limits the President’s military operations against the enemy” (244). Precedents cited by Ramsey do not go anywhere near so far. Justice Paterson held in 1806 that if a foreign country “should invade the territories of the United States” (241), the President may respond as he chooses. A few pages later, Ramsey squibs this case as triggering full presidential war power “when a state of war exists due to an enemy attack” (245). But there is a hugely important difference between actual invasion and mere attack. Ramsey also, I think, overreads the 1801 Jefferson cabinet decision to unilaterally authorize attacks on Tripoli in response to its declaration of war against the United States. Before Congress was consulted, the Executive merely gave orders that U.S. naval commanders could “destroy the enemy’s vessels” (451 n.22); but Ramsey reads this as supporting Executive discretion to wage war “without limitation” (p. 245). Would a single member of Jefferson’s cabinet (or Washington’s, Adams’, Madison’s or Monroe’s) have truly thought the Constitution allowed the President alone to order, say, the full scale invasion – “without limitation” – of Tripoli? Maybe, possibly, Hamilton or John Quincy Adams, but I doubt it.

I very much look forward to discussing these or other issues with Professor Ramsey.

This concern might appear substantial given the prominent work that Ramsey’s history does, though in the end I believe that this is not the case. The book’s treatment of history nonetheless remains reductionist. In this work, Ramsey seeks to resolve textual ambiguity by turning to historical certitude. The fundamental problem with this tack is that the history of separation of powers in the eighteenth century is itself rife with ambiguity, and this problem is nowhere more prominent than in foreign affairs. Especially in America, the period did come generate a certain consensus on the idea of the core of legislative, executive, and judicial powers were and should be distinct. But beyond this, most bets were off, including on such matters as appointments, removal and foreign affairs. Instead, disputes and disagreement on an array of specific problems tended to arise.

This creates several problems that would arise were this a work of history rather than constitutional theory. For one thing, the period reveals no more than a handful of individuals affirmatively equating “executive” authority with a general “foreign affairs” power, this among hundreds if not thousands of utterances. More importantly, the book tends to ignore a plethora of evidence that undercut Ramsey’s key assertions about executive power. This is not to say that Ramsey does not identify a certain strand in eighteenth century thought on this point. But, the disclaimer in the introduction notwithstanding, history is too messy, and there are too many other strands, for the book to assert that the Founders thought x, or worse, they “must have” thought x, to hold up unchallenged. That said, Ramsey does temper many of his assertions in other ways in a manner far more measured than most legal scholars who attempt to invoke history.

I believe the problem can be solved, if not by Professor Ramsey, then by a careful reader. It is simply to modify the introductory claim. To my mind, this work’s potential is not merely as descriptive book about the Constitution’s foreign affairs text as it was “understood” in the eighteenth century. Pitching it this way make it rely too much on one-sided history, and ironically does the book’s theory a disservice by rending to be a historical curiosity that may or may not be relevant to the age of globalization. Rather, what this book really is doing is presenting an elegant, balanced theory derived from text and one – not “the” – contemporary understanding of that text shared by some leading – though not all or maybe even most of — the Founders, that can resolve many modern disputes. Without having to spend too much time on foundational theory, Ramsey could make a far more powerful case for his framework by its reliance on: a) text; b) certain contemporary thinkers; as well as c) the theory’s own internal coherence and elegance; d) its balance as an alternative to “extreme” theories on the right and left. In short, I would strongly urge that he ratchet down the books veiled reliance on originalism, if only because the history is far too complex to sustain it. Conversely, the framework he presents shouldn’t have to rise and fall based on a contentious assertion of history. Rather, its basis in text, its historical pedigree (rather than history’s command), and the other factors mentions would make it less open to attack from historians and convince those who were not inclined to originalism to consider and apply it.

In recent years, many treaties have been interpreted to be “non-self-executing.” This has generally been understood by courts to mean that: (1) treaties do not create enforceable private rights; and/or (2) treaties are part of the domestic law but do not bind the President and the executive branch.

According to Professor Ramsey, non-self executing treaties that do not create private rights are constitutional, at least to the same extent as federal statutes that do not create private rights are also constitutional. But non-self-executing treaties that purport to make treaties that do not bind the President are unconstitutional.

Here’s where his analysis gets tricky. Treaties that supposedly do not bind the President are unconstitutional. But the result of such a finding is not that such treaties actually do bind the President. Actually, the result is that such treaties are not “law” at all and do not bind anyone, including the President.

This is an elegant, and as far as I am aware, original resolution of the non-self-execution issue. But it is somewhat strange to think that the President and the Senate have created, and continue to create hundreds of unconstitutional treaties and to think that there is no consequence to this rampant constitution-breaking. I think the likely response by courts, though, is to adopt interpretations of treaties in favor of self-execution because they have a duty to interpret laws to avoid finding them unconstitutional.

And I’m not thrilled by this result because I think non-self-executing treaties are functionally attractive tools for foreign policy. Non-self executing treaties give U.S. treatymakers a freer hand when negotiating since they can be confident that they can adjust or limit any ambiguities in treaty language when they implement the treaty. Such treaties also make it easier for the U.S. to achieve foreign policy goals by joining treaties that would otherwise be held up by fears of how such treaties would be interpreted down the road. None of the major international human rights treaties, for instance, would have been ratified without a non-self-executing limitation attached to them. And finally, non-self-execution is more democratic since it brings the House of Representatives into the process. This may not seem necessary, but as treaties seek to regulate more and more areas of law – everything from small arms to health care – I think the House can, and should, be part of this process.

My own view is that the President and Senate are authorized under Article II and Article VI to choose whether or not to make a treaty self-executing and that the courts should defer to this decision. I am attracted by the idea that judicial deference should be no more or less than that given to a federal statute, but I can’t help thinking that this deference should be a bit heavier given the unusual lawmaking origins of treaties in Article II. And I worry that if courts adopt the Ramseyan view that all (or most) such treaties are unconstitutional, the judicial presumption will go quite the other way toward finding such treaties self-executing.

As a matter of the original meaning of the Constitution, I think the answer is no. Professor Ramsey and I would apparently agree that, if Pakistan failed to give consent, this act would be beyond the President’s power because it would essentially mean launching a war against a sovereign state and therefore be barred by the Declare War Clause. Positing consent by Pakistan makes this a much more difficult question. Assuming al Qaeda 1.0 (not the Iraqi version) had not attacked U.S. territory or U.S. troops/facilities abroad since 9/11, President Obama would be confronting the issue about eight years after the attack. There had been plenty of time to consult Congress. In our hypo, Congress had not authorized the President to respond by force. This suggests to me that, under the original meaning of the Constitution, the President lacks independent discretionary power to decide in these circumstances to launch a military attack in a foreign nation.

As I understand Professor Ramsey’s schema, I would have thought he might agree with me, but for somewhat different reasons. In the eighteenth century, as now, there was little or no customary international law requiring extradition of persons who had committed a criminal offense against a foreign nation. Certainly Pakistan’s mere failure to capture and extradite al Qaeda would not violate the eighteenth century law of nations. For Professor Ramsey, this cuts against finding independent presidential authority to use force. If we posit that Pakistan-based al Qaeda was actively plotting attacks against the United States, but failed so far to attack, Pakistan’s failure to do anything does not create a state of war as against the United States under the eighteenth century law of nations. As I understand Professor Ramsey’s views, absent a legal state of war created by Pakistan, the President lacks constitutional authority to initiate a use of force. I don’t want to pretend that it is clear what conduct would create a “state of war” under the eighteenth century law of nations. Indeed, I think a weakness of Professor Ramsey’s approach is that the line separating severe provocations and hostilities from an actual “state of war” under the eighteenth century law of nations is often quite fuzzy.

Professor Ramsey and I also disagree about the amount and quality of the evidence from the Washington and Adams administrations about the Founders’ understanding of the President’s constitutional power to respond to attacks. According to Professor Ramsey, “The issue was not squarely presented under Washington. Aside from Indian tribes, there were no attacks on the U.S. With respect to Indian hostilities, on the southeastern frontier there were some isolated raids but Washington did not treat any of these as actually creating a state of war with the U.S., and did not respond in force.”

In my view, there were more than isolated raids; there was a formal declaration of war against the United States as well as attacks in support of that declaration. American territory was invaded by hostile forces; American civilians were killed; governors wrote frantic letters asking for a federal offensive. According to Professor Ramsey’s schema, this state of affairs should have triggered the President’s full constitutional powers to respond “without limitation” against the aggressors.

We know quite a bit about how the Washington administration viewed the constitutional status of these hostilities. Each member of the cabinet – Washington, Secretary of State Thomas Jefferson, Secretary of War Henry Knox, Secretary of Treasury Alexander Hamilton, as well as Attorney General Edmund Randolph – is on record rejecting Professor Ramsey’s constitutional analysis. Let me quote some administration documents, because I think they more or less speak for themselves. The relevant participants whose names might not be immediately recognizable are William Blount, Governor of the Territory South of the Ohio River; William Moultrie, Governor of South Carolina; and Henry Lee, Governor of Virginia.

• Knox to Lee (Oct. 1792): “I have this day received a letter by express from Governor Blount. . . . He states, that the five Lower towns on the Tennessee . . .have formally declared war upon the United States, and that the warriors had set out upon some expedition against the frontiers . . . . The nearness of the time at which Congress is to meet, who only are invested with the powers of war, will render it essential to wait the result of their deliberations, before offensive measures can be directed, supposing the information transmitted by Governor Blount to be authentic.”
• Knox to Blount (Oct. 1792): “It is with infinite regret I have perused your letter . . . containing information of the declaration of War by the five lower Cherokee Towns against the United States . . . . As you have ample powers to call forth such portions of the Militia of your Government for its defensive protection as you shall judge occasions to require no further steps can be taken at this moment. The Congress which possesses the powers of declaring War will assemble on the 5th of next month – Until their judgments shall be made known it seems essential to confine all your operations to defensive measures. . . . ”
• Knox to Blount (Nov. 1792): “Whatever may be [President Washington’s] impression relatively to the proper steps to be adopted, he does not conceive himself authorized to direct offensive operations against the Chickamaggas. If such measures are to be pursued they must result from the decisions of Congress who solely are vested with the powers of War.”
• Knox to Blount (May 1793): “You have been fully informed of the difficulties which have existed to prevent the President of the United States from giving orders, in consequence of your representations, for the most vigorous offensive operations against the hostile Indians. If those difficulties existed while Congress were in session, and which it was conceived they alone were competent to remove, they recur, in the present case, with still greater force: for all the information received at the time Congress were in session, were laid before both Houses; but no order was taken thereon, nor any authority given to the President of the United States; of consequence, his authority remains in the same situation it did on commencement of the last session. It is indeed a serious question, to plunge the nation into war with the Southern tribes of Indians, supported as it is said they would be. But, if that war actually exists, if depredations are repeated and continued upon the frontier inhabitants, the measure of protection is indispensable; but that protection can only be of the defensive sort. If other, or more extensive measures shall be necessary, they must, probably, result from the authority expressly given for the purpose by Congress.”)
• Opinion of President’s Washington Cabinet (Aug. 1793): “At a meeting of the Heads of departments & Attorney General at the President’s on the 31st day of Aug. 1793. . . .A Letter from the Governor of Georgia of the 13 instant covering the proceedings of a Council of War relatively to an expedition against certain towns of the Creek Nation was communicated for consideration. It is the opinion that the Governor of Georgia be informed that the President disapproves the measure as unauthorized by law as contrary to the present state of affairs and to the instructions heretofore given and expects that it will not be proceeded in, that requiring the previous consideration of Congress it will be submitted to them at their ensuring session, if circumstances shall not then render it unnecessary or improper. . . .”
• Washington to Moultrie (Aug. 1793): “Having conceived an opinion highly favourable to General Pickens, I invited him to repair to this City in order that I might obtain from him such facts & information as would be essential to an offensive Expedition against the refractory part of the Creek nation, whenever Congress should decide that measure to be proper & necessary. The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

I think it is possible to take constitutional meaning from the Quasi War with France during the Adams administration if we look beyond generalizations to the actual details of the events. Professor Ramsey writes in a post for this symposium that “The issue [of the President’s constitutional authority to respond to an enemy attack] also did not come up under Adams: the French seized U.S. merchant ships (supposedly for violations of rules of neutrality) in the run-up to the Quasi-War, but France did not attack the U.S. or U.S. forces. The (limited) war did not start until Congress approved it. This says nothing about Adams’ power had France attacked the U.S.” Professor Ramsey apparently holds that only an attack on U.S. soil or U.S. forces created, under the eighteenth century law of nations, a “state of war” and hence invoked the President’s constitutional power to respond without limitation. For this reason, he can describe the Quasi War as one in which there was no relevant enemy attack which created a state of war. And he can posit a clear point at which “war” began by U.S. congressional action.

But Professor Ramsey’s analysis depends on clear dichotomies that did not exist either in fact or in law at the time. As one reads the Annals of Congress, press reports and relevant Executive documents from 1797 and 1798, we see a series of increasingly intolerable French provocations and hostilities, and we see much disagreement about whether French actions had or had not created an actual, if not formally declared, state of war. There were many points at which an Executive branch looking for an opportunity to attack France could have plausibly claimed that French actions amounted to war. Instead, the Adams administration cautiously tried to preserve peace and allowed Congress to decide whether and when to increase the hostility and severity of U.S. responses. In total, I see pretty clear constitutional meaning in this episode. We do not have Executive documents of the explicitness of those from the Washington administrations, but President Adams’ cautious actions and cautious rhetoric, always noting his deference to Congress’s wishes, do constitute, I think, a meaningful interpretation of the Constitution. Constitutional analysis in Congress was much more explicit and, I believe, contradicts Professor Ramsey’s take on this episode.

Since the wars of the French Revolution began, the French (and other belligerents) had been seizing American commerce with their adversaries under various legal pretexts, some defensible and some clearly indefensible. As a result of the United States’s partial reconciliation with Great Britain through the Jay Treaty, French stepped up the quantity and outrageousness of its seizures of American merchant vessels in 1796 and 1797. Many hundreds of ships were taken. American sailors were sometimes killed or wounded. A plausible case could be made under the law of nations that these actions constituted war on the United States; the counter-arguments are probably stronger, but I don’t see this as a clear-cut issue.

In May 1797, Adams reported to Congress that an American minister to France had been insulted, threatened with arrest, and expelled. Adams did not use this as a pretext to respond hostilely; he instead announced he was sending a team of three special envoys. In July 1797, Congress authorized the President to use naval vessels “to defend the sea coast, and to repel and hostility to their [United States’] vessels and commerce, within their [United States’] jurisdiction.” Seizures continued. Some members of Congress thought they were sufficiently numerous and illegal that France had started a war; others disagreed. All thought that Congress had the authority to determine the U.S. response.

In February 1798 Adams reported to Congress that French privateers had entered Charleston harbor and attacked shipping there, burning one British vessel. Did this gross violation of American territorial sovereignty begin a war? Not in isolation, but in the context of all the other provocations, the question is closer. In March 1798, Adams told Congress that dispatches from his envoys showed no hope of a diplomatic solution. Soon thereafter, at the request of Congress, he published certain dispatches showing that the U.S. envoys had been grossly mistreated by France. Among other things, agents of the French minister of foreign affairs had demanded bribes and a huge “loan” as a precondition to beginning negotiations. Seizures of American ships continued, as well as violations of American territorial waters. Despite what Professor Ramsey implicitly suggests, I do not think it is at all clear that a “state of war” did not yet exist under the law of nations. Yet Congress and the Executive still agreed that Congress should chart the U.S. course.

In April and May 1798, Congress authorized the President to build and deploy defensively more naval vessels. Also in May, Congress authorized the President to order U.S. armed vessels to seize any French vessels which had illegally seized a U.S. vessel within U.S. territorial jurisdiction, or were “hovering” along the U.S. coasts. Under Professor Ramsey’s analysis, at least the first part of this statute should have been viewed as utterly unnecessary under the Constitution. In June 1798, Congress stopped commercial intercourse with France by U.S. persons or vessels and barred all French vessels from U.S. ports and waters. Also in June, Congress authorized the President to increase the armaments of U.S. revenue cutters “for purposes of defence, near the sea coasts” and authorized U.S. merchant vessels to arm and resist French attempts to search them, and capture any French ships which molested them. This second statute was a big deal under the eighteenth century law of nations, and could well have been said by an aggressive American Executive to constitute an implicit declaration of war, allowing him free rein to attack France. President Adams did not do that. Nor did he claim that any of the statutes were either constitutionally unnecessary or infringements on his constitutional powers. In July 1798, Congress denounced U.S. treaties with France, giving the President another opportunity. Also in July, Congress authorized the President to order U.S. naval vessels to seize any French naval vessels, and to license private armed vessels to do the same. If war had not yet begun, it certainly did by means of this last statute. But it is not at all clear that a “state of war” did not exist earlier.

The situation deteriorated throughout 1798 and 1799. With the exception of the naval order I discussed in my initial post, I am not aware of President Adams violating restrictive statutes or doing anything in excess of authority granted him by statute. He undoubtedly thought that his actions best served the national interest. But I have a hard time imagining that he did not also think that the Constitution required the caution and deference to Congress which he displayed. I tried to set out above the textual basis for that caution and deference.

Let me say in closing what I suggested at the outset of my initial post: I think Professor Ramsey’s book is an enormously valuable and impressive piece of work. I agree with large swaths of it; even where I disagree, I think Professor Ramsey’s arguments are careful, fair, and exceedingly thought-provoking. I will keep The Constitution’s Text close at hand for years to come as I continue to explore and write about constitutional foreign affairs law.