Wednesday, September 19, 2018

Golove & Hulsebosch on the Law of Nations and the Constitution

David M. Golove and Daniel J. Hulsebosch, New York University School of Law, have posted The Law of Nations and the Constitution: An Early Modern Perspective, which appears in the Georgetown Law Journal 106 (2018): 1593-1658:
Many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ensure that the United States complied with its (or their) treaty obligations and the law of nations that was arguably the most important, and the most consensual, reason for the drafting and ratification of the new Constitution. That imperative shaped the structure outlined in the text, as well as much of the way that judges, executive officials, and even legislators interpreted and administered the Constitution during the first generation of the federal government. The result was a government designed to interact productively with the law of nations. Some of those interpretations, and some aspects of federal administration, became enormously controversial and generated early partisan divisions. But the basic premise—that the law of nations was the law of the land—proved durable, creating a tradition of international “law- mindedness” that deserves more historical investigation than it has so far received. The result is not just a scholarly lacunae. Among many lawyers today, the Founders’ conception of the central position of the law of nations in the American legal order is even less appreciated than their cosmopolitan outlook.

In offering a corrective to this forgetfulness, Professors Anthony Bellia and Bradford Clark, in The Law of Nations and the United States Constitution, make an important contribution to the ongoing dialogue over the Founding. Nonetheless, in our view, the legal theory that Professors Bellia and Clark offer downplays, misses, or misunderstands crucial features of the pertinent history, especially why and how the Founders struggled to interweave the law of nations into the Constitution. These errors and elisions are important, in part for purely academic reasons, bearing on the extent to which their approach accurately portrays a foundational period in U.S. constitutional history. They are also important, however, because they lead Professors Bellia and Clark to reach some sound, but also some unsound, conclusions about important issues of constitutional law.