Foreign Affairs and the United States Constitution, 2d ed.

• Author: Glennon, Michael J.

Second Edition. By Louis Henkin. New York: Oxford University Press. 1996. Pp. [xxii, 582. $29.95.

[T]he highest morality almost always is the morality of process.

--Alexander M. Bickel(1)

Reading the second edition of Louis Henkin's book brings to mind Frankfurter's reaction to Holmes' opinions: to quote from them, he said, is "to string pearls."(2) In style as in research, Foreign Affairs and the United States Constitution is a string of pearls. Elegant, graceful, and lucid, the book sets a standard for legal scholarship that is almost unmatched by current writers. Indeed, it recalls a bygone era of eloquence in legal writing, when authors wrote for the ages, and the best works resembled fine sculpture, with the moist clay carefully added, removed, and massaged to perfection. The carefully nuanced pages of Henkin's widely feted work give the feel of a careful hand at work, smoothing the words and thoughts and massaging them until they are just right.

Louis Henkin, University Professor Emeritus at Columbia University, is a liberal internationalist. In writings that span four decades, he has argued for an active American involvement in international organizations, especially the United Nations; broadly protective international human rights initiatives; nonviolent, multilateral resolution of international disputes; and a free-flowing international interchange of commerce, people, and ideas.

Henkin is also a constitutionalist. He believes in nonprotean process, in a set of overarching rules that govern the allocation of decisionmaking power, and rules that do not vary depending on the desirability of the particular policy outcome to which they will lead in a given case.

During the New Deal and until the mid- to late-1960s, liberal internationalists favored a strong executive, weak Congress, and deferential judiciary. The Presidency, during that period, favored international engagement and nonconfrontational relations with the Communist Bloc. The United Nations was far more popular in the White House than on Capitol Hill. Congress, under the spell of southern segregationists, Senator Joseph McCarthy, and assorted other cold warriors, distrusted international institutions. The Bricker Amendment, a constitutional amendment proposed in 1953 that would have presumed all treaties to be nonself-executing, missed the required two-thirds majority by only one vote in the Senate.(3) Congress strongly opposed admitting "Red China' to the United Nations, and, largely because of congressional concerns about being "soft on communism," detente with the Soviet Union was at least a decade away.

Vietnam, of course, changed all that. Liberal internationalists found powerful new friends in the Senate -- Mansfield, Church. Fulbright, Cooper, Javits, Hatfield -- counterpoised against an executive branch dominated by figures such as McNamara, Bundy, Rusk, Laird, and Kissinger that was increasingly willing to go it alone." Executive and legislative perspectives differed dramatically on such things as the war, ABMs, MIRVs, covert CIA operations, and a military establishment perceived as overly influential by many in Congress.

Liberal internationalists were thus caught in a dilemma. They previously had favored broad executive power in foreign policy decisionmaking. They had wanted Congress to mind its domestic business and had wanted the courts to sit out whatever disputes might arise between the two. Now, though, the institutional tables had turned. Did they really prefer that the courts remain mute on Vietnam? Should Congress really remain passive while presidents used the military and CIA for possibly nefarious purposes? Did presidents really have unbridled power to commit the nation to defend countries with heinous human rights practices?

Some liberal internationalists responded to the dilemma simply by abandoning their earlier interpretation of the constitutional rules or by pretending to be consistent, but in fact stretched their analyses beyond recognition to get the results they desired. A few, constitutionalists to the end, subordinated policy to what they saw as preagreed process and accepted policy results incompatible with liberal internationalism.

It might be suggested that the real issue with the former group is whether they were right to be principled" -- i.e., sticking to pre-ordained rules, or principles, whatever the outcome. Some of the law's great literature exalts this "neutral principles" approach. Fiat justitia et ruant coeli -- "do justice though the sky falls."(4) Some will respond that this "formalism" overstates the law's determinacy and that legal rules are flexible enough to accommodate liberal internationalism. Others would go further and suggest that outcome is all there is and that the only task of the rules is to produce good policy -- for Henkin, liberal internationalism -- no matter how severely the decisionmaking process must be distorted to achieve that end. For the sky to fall, they might add, would be unjust.

Henkin does not fall into these latter categories. He does not -- not in Foreign Affairs and the United States Constitution, in any event -- spell out a Grand Theory of Law that reconciles the law's indeterminacy with its universality. Still, if one were to locate Henkin on a spectrum stretching from formalist to realist to crit, it seems fair to say that he clearly is no crit, that he is reasonably open to the insights of legal realism, but that he nonetheless pays considerable worship to what Alexander Bickel called the "manifest" Constitution -- provisions of the Constitution that are not open-textured and to which there attaches a moral obligation to obey.(5)

Given this context, it ought to be interesting to see which prevails when Henkin's liberal internationalism runs squarely up against his commitment to constitutionalism. As I will try to point out, the answer is sometimes one and sometimes the other. If Henkin is unwilling to let all the constitutional firmament fall and crush liberal internationalism completely, he is not averse to a letting a sizeable chunk crash down now and then.

I.

The first thing to be noted, again, about both Foreign Affairs and the United States Constitution and Henkin's first edition, Foreign Affairs and the Constitution,(6) is that neither attempts a comprehensive, unified "field theory" that untangles and reweaves all of the disparate foreign affairs strands of the Constitution. Henkin presents no overarching analytic framework in which to evaluate the plenary and concurrent powers of Congress and the President and the role of the courts. Perhaps it would be asking too much to expect such a thing; those elements, after all, are sometimes unrelated, and an overarching theoretical explanation may be unattainable. A work addressing the theoretical underpinnings of foreign relations law might be a very different book. One of the most attractive aspects of Henkin's book is its readability and accessibility to nonexperts.

Still, other constitutional commentators as eminent as Henkin have ventured such approaches in constitutional terrain no less treacherous than foreign affairs, and not all of their attempts have been unintelligible.(7) It would be interesting to read Henkin discuss some of the subterranean issues of foreign relations law, such as the relative merits of originalism and custom as interpretive guides, or other questions falling under the rubric of the "doctrine of sources."(8) One need not glaze the eyes of a thousand readers with an extended exegesis on hermeneutics in order to explain the basic precepts that one accepts in interpreting the Constitution's foreign affairs powers. Nor is it hard to explain succinctly what law is and why it need be observed; indeed, Henkin has elsewhere done so himself with characteristic eloquence.(9)

Had Henkin attempted something of this sort, some inconsistencies might have been highlighted (or eliminated). But the short shrift accorded other topics would be more understandable, as would the fact that some conclusions are asserted more than they are developed.

Henkin's treatment of the President's foreign intelligence powers presents a curious example. Following a nuanced discussion of the war power, Henkin seemingly argues that intelligence activities, even those conducted overtly and directed solely at gathering information, are subject to congressional control (pp. 111-12). He justifies this conclusion on the ground that the President's intelligence gatherers are executing laws made by Congress. Congress passed the legislation that established the agencies and departments in question and in so doing necessarily spelled out what they can and cannot do. But because every federal employee necessarily traces his authority back to some congressional statute -- the President having no power over the purse -- that rationale would support a finding of congressional power to restrict any executive function and leave no room for the exercise of any exclusive presidential power in the realm of intelligence. Could the Congress order the repositioning of satellites to seek more intelligence on the environment and less on terrorism, or "task" the National Security Agency to break codes that the NSA had determined to be too well encrypted -- and thus too expensive -- to crack? Could Congress stop the President from using Foreign Service officers to attend parliamentary sessions in a foreign country to identify parliamentarians who might be open to recruitment by the CIA? Or, could Congress, prior to its authorization of force during the Persian Gulf War, have suspended the collection of all "humint" -- human intelligence -- against Iraq because Congress felt it was unduly risky?

Perhaps, but the answers hardly seem self-evident. A more subtle analysis of executive and legislative power over intelligence activities might consider a variety of other factors. These would include the extent to which the activity in...