by Michael D. Ramsey. Cambridge: Harvard University Press, 2007. 504pp. Hardcover $65.00/£41.95/€59.90. ISBN: 9780674024908.
Reviewed by Kyle L. Kreider, Political Science Department, Wilkes University, Wilkes-Barre, PA. E-mail: Kyle.Kreider [at] wilkes.edu.
Receiving much press and attention in the 2007 Supreme Court term is MEDELLIN v. TEXAS, an international law case that asks whether the president has the constitutional authority to require the states to abide by an International Court of Justice (ICJ) opinion. The MEDELLIN case is one of a long line of cases presenting an interesting question about the scope of presidential power and one that THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS seeks to answer. Through analyzing constitutional text, secondary writings, and historical evidence, Michael Ramsey lends a powerful voice to the debate on what the Constitution says about foreign affairs. Specifically, Ramsey argues that “we have too quickly given up on the Constitution’s text” in seeking answers to foreign affairs questions and, therefore, he aims to “rediscover” the foreign affairs framework that has been so easily discarded (p.2).
The book is divided into six sections. Ramsey first addresses the sources of presidential power, focusing on what the Constitution and the Articles of Confederation mean for presidential power, then shifts to specific institutions (President, Congress, the states, and courts) and their respective roles in foreign affairs. In the first two chapters, Ramsey acknowledges the difficulty of interpreting the Constitution’s meaning for foreign affairs. He illustrates this by showing that Justice Sutherland, in UNITED STATES v. CURTISS-WRIGHT CO. (1936), did not look to the Constitution’s text to decide whether the president had the authority to impose an embargo on arms sales to Bolivia and Paraguay. The Court found the presidential authority constitutional but maintained that it derived from a source external to the Constitution, that being the “conception of nationality.”
Justice Sutherland’s claim that the president’s authority in foreign affairs is inherent in the “conception of nationality” can be assessed by examining the “unstated background assumptions” (p.29) of the time leading up to the Constitutional Convention. Chapter 2, then, examines whether the Articles of Confederation give any weight to Justice Sutherland’s claim in CURTISS-WRIGHT. Ramsey’s interpretation of the evidence is that under the Articles of Confederation, it was not assumed that Congress – the branch with foreign affairs powers – had inherent powers. Rather, “the common thought was that exercise of these powers depended upon the states adding to the Congress’s textual grants” (p.39). Therefore, if CURTISS-WRIGHT is wrong about presidential authority in foreign affairs, does the Constitution’s text answer the questions regarding where power lies in foreign affairs? Ramsey argues that it does. [*832]
Many constitutional theorists argue that, unlike Article I, which provides a relatively detailed accounting of congressional power, Article II is vague and open-ended, thereby inviting debate and discussion as to the scope of the president’s power in foreign affairs. Article II’s generality is the primary reason Justice Sutherland and the CURTISS-WRIGHT Court went outside the Constitution to find the president’s actions constitutional. Ramsey argues, however, that the Vesting Clause of Article II, Section 1, which provides that “the executive Power shall be vested in a President of the United States of America,” affords a solid basis for presidential power in foreign affairs.
While the words “executive Power” do not appear to contain a lot of explanatory power, Ramsey argues that those two words contained a great deal of meaning at the time they were written. For example, Ramsey points to John Locke’s belief that executive power and federative power should “be held by the same branch of government” (p.62) even though they were distinct. Executive power requires executing existing laws, while federative power does not because a president cannot know in advance what he must do in response to foreign affairs. According to Ramsey, both Montesquieu and Blackstone believed that “executive” power encompasses foreign affairs discretion and execution of laws.
Ramsey realizes, however, that he needs to demonstrate that late-eighteenth century Americans shared the definition of broad executive power as Locke, Montesquieu, and Blackstone proposed. Ramsey contends that the drafters and ratifiers of the Constitution (Chapter 3), as well as government officials in the Washington administration (Chapter 4) believed – through word and action – that “executive Power” included foreign affairs power. Understanding that many people are uncomfortable when someone argues for inherent presidential power, Ramsey devotes Chapter 5 to allaying those fears by arguing that expansive presidential foreign affairs powers “[do] not upset constitutional checks and balances nor provide the President with ill-defined or unlimited authority” (p.92). For example, one of the limits on presidential power is an inability to change existing legal obligations and rights domestically. Therefore, YOUNGSTOWN SHEET & TUBE CO. v. SAWYER (1952) was decided correctly because President Truman was attempting to use his foreign affairs powers and apply them in an inappropriate domestic realm. The point Ramsey is seeking to make is that this expansive presidential power in foreign affairs is not limitless.
The third and fourth sections of the book discuss the role of Congress in foreign affairs. Although the framers envisioned a role for the Senate in treaty making and approval (Chapter 7), the framers did not give the Senate a role in treaty withdrawal. Treaty withdrawal – defined as “terminating it in accordance with its express or implied terms” (p.172) – is a power given to the president (Chapter 8). In one of the most interesting chapters (Chapter 10), Ramsey maintains that NAFTA “is almost constitutional” because, while Congress “lowered trade barriers (which it can always do),” NAFTA is unconstitutional because “Congress agreed (or authorized the President to agree), on behalf of the United States, [*833] not to raise trade barriers in the future” (p.217). This Congress can not do.
In Chapters 11 and 12, Ramsey evaluates the meaning of war. In Chapter 11, Ramsey concludes that the declare-war clause should not be confused with formal proclamations because a “broader meaning” was intended, that actions can also create a state of war. Therefore, simply because Congress has not formally declared war does not mean that the war is unjust. In Chapter 12, Ramsey points out that the framers balanced war powers between the executive and legislative branches. Neither branch has sole or dominant power over war decisions.
In Section 5, Ramsey tackles the question of what role states have in foreign affairs. In a very compelling chapter (13), he argues that “the text and commentary stand against a broad preclusion of state foreign affairs power, particularly with respect to state laws having foreign affairs implications” (p.281). Chapters 14 and 15 might be Ramsey’s answer to MEDELLIN v. TEXAS. In particular, he argues that state law cannot be displaced “by the President alone, because the President has no power to make ‘supreme Law’” (p.299). State law can only be displaced by a process “in which states have representation” (p.299). The current problem is that with the ratification of the Seventeenth Amendment – and the direct election of US Senators – state input in the treaty process is very limited at best.
In the last section (VI), Ramsey evaluates the role of courts in foreign affairs, noting that federal courts may be too quick in declaring a political question (Chapter 16), that international law is our law (but not supreme law if Congress and President have not adopted it) (Chapter 17), and the courts might be well suited to give the president some deference in his interpretation of international law.
In this meticulously researched and well-argued book, Ramsey lays out a compelling case for returning to the Constitution’s text and surrounding documents to ascertain the meaning of the Constitution at the time of the founding. THE CONSTITUTION ‘S TEXT IN FOREIGN AFFAIRS is a welcome addition to the constitutional law and theory literature because many scholars and teachers have moved beyond the text and its meaning in the late-eighteenth century (presumably its intended meaning). Most scholars are not going to quibble with Ramsey’s general conclusion that the Constitution “is fundamentally about distributing power across numerous independent yet interrelated branches of government” (p.7) but very well might find fault with his contention that the Vesting Clause of Article II, Section 1 grants the president the residual powers Ramsey claims it does. While there is a modicum of support for Ramsey’s Vesting Clause thesis – primarily some passages written by Locke, Montesquieu, Blackstone, and Jefferson – many believe the balance of evidence suggests the framers’ lack of specificity in Article II, Section 1 was intended to ensure it would be defined in practice and not by a set of a priori rules. After all, if the framers were clear on other presidential and congressional powers, why not be clear on what “executive Power” means? [*834]
In short, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS should be read by all scholars and students of constitutional interpretation and presidential power in foreign affairs. It is a welcome voice to a very timely and provocative debate.
MEDELLIN v. TEXAS, No. 06-984 (2007).
UNITED STATES v. CURTISS-WRIGHT CORPORATION., 299 U.S. 304 (1936).
YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 U.S. 579 (1952).
© Copyright 2007 by the author, Kyle L. Kreider.