Foreign Affairs and the United States Constitution

Rating:
Summary: Enjoyable reading, written with literary grace
Review: Reviewed by Vladimir Matveyev in International Relations, Volume XIII, No 6, December 1997,

Nearly 25 years have passed since the publication of the first edition of this book. It has become almost a classic text. This is a much-anticipated new edition, reconceived, reorganized and updated by the author. Professor Henkin has added to his comprehensive list of judicial decisions and opinions explaining and interpreting the US Constitution in the field of foreign affairs. The newest and most important ones encompass confusion in the US foreign policy machinery in the aftermath of the Vietnam War and in the last decades of the Cold War. His references for the legal documents, on which the analysis is largely based, are unparalleled and crucial for understanding the issues unravelled by the author.
As Professor Henkin notes, 'where foreign relations are concerned the Constitution seems a strange, laconic document'. There are a few lines conferring a limited number of functions upon either the President or the Congress, or directing them to act jointly. From this it might seem that the well-publicized and extensive foreign policy prerogatives of the US President are extra-constitutional, or even unconstitutional. This is not the case. As Louis Henkin not infrequently remarks, the Constitution is what the Supreme Court and federal courts say it is. Moreover, there are substantial arguments in favour of the constitutional nature of presidential power. These are scrupulously analysed by the author in a special chapter dealing with the President's power as well as in another chapter devoted to the allocation of foreign affairs powers in different branches of the federal government. Some arguments have their roots in history. In the opinion of Justice Sutherland, quoted by professor Henkin, the powers of the US to conduct relations with other nations do not derive only from the text of the Constitution. As Justice Sutherland commented in 1936, 'external sovereignty' passed directly from the British Crown to the Union of States as a collective entity. Thus, the Constitution did not declare or enumerate the power of external sovereignty; it assumed it.
The extent of presidential power can also be explained by the need for it as a result of the exigencies of international relations (particularly, in the age of nuclear weapons), by the dramatic rise of the United States role in world affairs, and by the practices of diplomacy. More than 200 years ago, after much consideration, the framers of the Constitution adjudged that Congress should have the leading role with the Executive second in command. In practice, however, these roles have been reversed in the making of foreign policy. For many reasons, Congress is less efficient in communicating with foreign governments. Only the President, as the main organ of communication, 'can act quickly, informally, secretly'.
It could also be considered that the Constitutional clause vesting in the President 'the executive power' automatically gives him all authority over foreign relations. When Alexander Hamilton mentioned this opinion in the early years of the Republic, he was immediately opposed by James Madison who portrayed it as an attempt to import into the Constitution British monarchical prerogatives. Nor do the latest Supreme Court decisions support the idea that 'the executive power' clause is a source of undisputed authority to conduct foreign relations.
A number of powers have been acquired by the President, by implication. Thus, his Constitutional power to appoint ambassadors (with the advice and consent of the Senate), other public ministers and consuls, has in practice been transformed into the power to make all appointments in the foreign policy establishment and to control the foreign relations 'apparatus'. In many instances he does so without the need of Senate approval. In other cases, such as the appointment of all Foreign Service officers, i.e. professional diplomats, that approval is largely perfunctory.
The President does not confine himself to conducting foreign relations. He makes US foreign policy, as witnessed by for example the celebrated 'Doctrines' (Monroe's, Truman's, Nixon's or Reagan's).
There have been frequent challenges to presidential actions and edicts - by Congress, by the courts, by scholars, by wider public opinion. The sharp controversy between the Executive and Congress in the 1970s resulted in the adoption of the War Powers Resolution which posed a serious challenge to the Presidency. Simultaneously Congress and the Senate became more assertive and more expert in foreign policy-making having in its ranks some Senators, who, because of their length of service, had more expertise and sophistication than that of successive Presidents.
Since that time the applicability of an 18th century Constitution to the realities at the end of the 20th century has been persistently questioned by the wider public, by experts and even by public employees. The Foreign Service Association, which represents career diplomats, constantly disputes the right of the President to nominate whomsoever he wishes to any foreign post without seriously considering the opinions of professional diplomats.
Professor Henkin acknowledges that ambiguities in the constitutional law of foreign affairs before, between and after the two World Wars, and during and after the Cold War have been 'particularly troubling, and sometimes dangerous'. Yet he disagrees with those who believe that the Constitution should be changed or at least amended. First, he believes that the division of powers in the conduct of foreign affairs is not, has not been, and cannot be what it is in domestic affairs. Hence the old assumption that foreign affairs are different is likely to survive into the 21st century. Secondly, Professor Henkin, unlike many other commentators, is not inclined to over-dramatize disturbances in the foreign policy process. 'Conflict never quite becomes all-out war, confusion is not quite chaos, frustration does not grind government to a standstill. Like the proverbial "love - hate" marriage, that of Congress and President goes on: that the tensions continue and recur, that the arguments, constitutional and political, repeat and re-echo, may only suggest that it will go on'. Moreover, he remarks that the disturbances are not 'due to constitutional uncertainty and issue: it is what the Constitution intended'. In other words, the separation of powers and the system of checks and balances designed by the Founding Fathers provides for the inevitable struggle for power between the various branches of government. It also provided for, and will certainly continue to ensure, the adoption of foreign policy options best suited for a democratic nation. It never allowed any single organ or institution to acquire full control of foreign affairs inconsistent with pluralistic approaches to foreign policy-making.
'I do not suggest that our system is the best of all possible systems or that it is working well, only that it cannot be effectively improved by constitutional amendment', writes Professor Henkin. Yet, the author is not at all convinced that there is no scope for improvement. On this, some sections of the book are especially noteworthy and thought-provoking - in particular, the chapters covering the role of individual rights and of the courts in foreign affairs. Individual rights guaranteed by the Constitution, by the Bill of Rights and by a number of Amendments to the Constitution, can be a source of constitutional limitation on foreign policy and process. Professor Henkin observes that in the relatively few Supreme court cases in which the balance between freedom of expression and national foreign policy are an issue, so far foreign policy interests have prevailed. He cites only one case, the Pentagon papers case, where the first Amendment clearly prevailed: the Supreme Court refused to grant the Executive an injunction preventing press publication of 'classified' material.
The author believes that 'respect for individual rights ra

Rating:
Summary: Good, but a little conclusory and politicized
Review: This is an excellent book. It's amazing that so much important information can be packed into such a short space.

That said, however, the book does has a couple of shortcomings, a couple of which I will be happy to point out. First, professor Henkin doesn't adequately account for trends in Supreme Court jurisprudence that will have the effect of seriously curtailing the application of international organizations and covenants to the United States. Professor Henkin states that "federalism...rarely raises its head in foreign affairs." Wrong! This is professor Henkin's most serious analytical error. Federalism has been reinvigorated in the past few years, and there's no end in sight to its resurgence. From New York v. US, to Lopez, to Printz, to Seminole Tribe the Supreme Court has determined that the tenth and eleventh amendments are not to be rolled over on a federal whim. The recent case of that Paraguayan butcher and attempted rapist, Angel Breard, is a case in point. The Supreme Court denied his claim, AND that of the Paraguayan consular officials who claimed a violation of the Vienna Convention. Why did the Supreme Court turn down the appeals? Because of the eleventh Amendment, of course. The Supreme Court has strengthened the eleventh Amendment in Seminole Tribe and Coeur D'Alene to the extent that certain treaties are no longer enforceable (except for continuing violations that fall within the Ex Parte Young doctrine) within our federal structure. This is a HUGE development, and it cannot be ignored, especially when the trend is toward more and more intrusion into what are typically thought of as state functions.

Second, one gets the feeling that professor Henkin's analytical mode is being directed by what he considers higher values. A small example: on p. 71 he claims that the Foreign Affairs power reaches *any* domestic, purely internal activity, in order to alleviate poverty, alienation etc. etc. That's a passionate defense of left-wing American liberalism, unlim! ited federal power, and statism; it is not, however, a serious analysis of constitutionalism. One is inevitably led to the conclusion that professor Henkin's constitutional analysis is a servant to his politics; it leads a wide-eyed, naive reader to wonder what arguments professor Henkin has failed to make that would take away from his cherished political point of view.

So enjoy this book, it's the best of its kind. But beware...END