Reflections on a Conversation

• Publication year: 2010

Reflections on a Conversation

H. Jefferson Powell

Introduction

No one should doubt the proposition that the ways in which American foreign policy is formulated are worthy of discussion. It was an honor and a great privilege to participate in a conversation on that topic involving leading scholars in the field, as well as several lawyers with vast practical experience in government. The editors of the Georgia State University Law Review did a superb job of bringing together a wide range of views. The editors, furthermore, insightfully broadened the scope of the conversation to the issue of constitutional interpretation outside the courts. The exchange of ideas and expressions of disagreement were frank but also cordial and constructive. I am further grateful to my distinguished co-participants and to the editors of the Law Review for the opportunity to provide some brief reflections on our discussions.

I. Past

It is easy to imagine a visitor from another world, paradoxically fluent in American English but ignorant of American culture, listening to our conversation with growing amazement. The topics supposedly under consideration involve or relate to the processes by which the only current planetary superpower (the "hyperpower" or "American empire" in currently faddish terms) makes and implements decisions about how it will deal with other states and with events beyond its borders. Given the predominance of American military, economic, and cultural power, those decisions are of the gravest importance to every human being on Earth, and they are by definition decisions which shape the future. Yet, the presentations by several of the participants, as well as the book that served as the starting point for discussion,[1] spent much time and effort talking about the past. David Gray Adler carefully parsed the constitutional goals endorsed by the American polity of two centuries ago. Philip Bobbitt commended the value of studying governmental decisionmaking in past times and on remote issues. Robert Delahunty presented a bold new thesis about the relationship between the Constitution's structural arrangements and the strategic position of the United States in the 1780s. Louis Fisher analyzed the constitutional significance of current practice in light of eighteenth century ideas about federalism. Further, my book spent over a quarter of its pages discussing in detail the conduct of American foreign policy in the administration of President George Washington. One could hardly blame our alien visitor for thinking that there was an essential and debilitating misconnection between what we claimed we were talking about and what we actually seemed to be saying.

One explanation for this misconnection is that we were talking in code, or more pejoratively, that some or all of us were cloaking contemporary and partisan intentions in the garb of historical assertion. These interpretations of constitutional disagreement are common, but it is to the credit of the participants in this Symposium that the conversation proceeded throughout on the assumption of good faith on the part of all. This is not simply an issue of civility (although civility's importance is, I think, greatly underrated in parts of contemporary political culture); the assumption that constitutional arguments are a veil or disguise for other presumably constitutionally improper concerns both misunderstands the very nature of constitutional interpretation and is in the end utterly corrosive of the very possibility of constitutional law.

Another view of the apparent oddity of our conversation, also a despairing one, is that the misconnection was genuine but opaque to the participants. Our earnest debates about the past stand in the same relationship to the making of American foreign policy that the deliberations of the Roman College of Augurs bore to the decisions of the Emperor Augustus.[2] The augurs may well have been sincere in their application of the recondite lore of the scientia augurium, but no skeptic, ancient or modern, would think it wise of Augustus to govern his actions accordingly. Similarly, one might argue, the participants in this Symposium are the captives of the irrelevant and antiquarian learning of which they are the custodians, and one can only hope that no real decisions rest on the sort of arguments they employ.

There is some truth, or danger of truth, in this perspective, just as the cynicism of the first view becomes, if indulged sufficiently, a self-fulfilling prophecy. Philip Bobbitt spoke at one point of the brittleness of some constitutional arguments about the distribution of authority over foreign affairs and the danger of these arguments becoming abstracted from the factual concerns of any foreign policy. Teresa Wynn Roseborough reminded us that foreign policy decisions are largely driven by events—some decision must be made (inaction of course being one form of decision)—and the concerns of the decisionmakers are not abstract. At the same time, from her own experience in public service, Roseborough stressed the real interest of decisionmakers in legal and constitutional matters, even if their interest is not identical to that of an academic writing an article or book or (I would add) a judge deciding a case.

The underlying mistake in the irrelevant-antiquarianism view of conversations such as ours is that, once again, it rests on a mistaken understanding of American constitutional law and its relationship to political and ideological commitments. Historically-oriented arguments of the sort that were prominent in the Symposium are one of the modalities of constitutional interpretation that make up "the grammar of [constitutional] law, that system of logical constraints that the practices of legal activities have developed in our particular culture."[3] In his classic formulation, Phillip Bobbitt describes six modalities: textual, historical, structural, doctrinal, prudential, and ethical.[4] These modalities serve to identify and structure the conversation as one about constitutional law; they do not exclude but rather demand the exercise of moral and political judgment. To be sure, constitutional interpretation by legislators, executive officers, and private citizens takes place in forms and ways that are unfamiliar to someone who is obsessed with the role of courts and judicial review...