Speaking Outdoors

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

Speaking Outdoors

L. H. LaRue

Introduction

I have been assigned the topic of how to discuss the Constitution outside of the courts, and I cannot imagine a topic that is closer to my heart or one about which I am more delighted to write about. When the delegates drafted the 1787 Constitution, they sometimes referred to "the people outdoors,"[1] and when they did so, they meant to speculate on how their work might be received by "We, the People . . ." who would debate it and vote on it. So, the topic for this panel of the Symposium has an honorable history, and I am pleased to extend this ancient topic into modern garb.

Furthermore, this topic (debating the Constitution outside of courts) is especially appropriate for a Symposium to honor Professor H. Jefferson Powell's book on the foreign affairs power.[2] One of Powell's theses in his book is that constitutional debate on the allocation of power in foreign affairs should be debated outside of courts, not inside them.[3] Powell's thesis is dear to my heart, but the thesis is idle unless we can all improve our performance in doing what Powell states needs to be done.

So, let me begin by stating my agenda for this Article, which is twofold. First, I wish to look at the methods of interpretation that Powell uses to reach the conclusions that are his thesis and ask: how well adapted are these methods to use outside of courts? Second, I wish to look at my own practice of arguing outside of court and subject it to judgment. Do the ways that I have argued live up to the standards of constitutional discourse set forth by Powell, which I agree are the standards we should employ in interpreting the Constitution?

Perhaps it would help if I stated this agenda less abstractly. When Jefferson Powell and L.H. LaRue have been outside of the academy, they did very different sorts of things--I speak now about the two of us in the third person abstract, and using the past tense, so as to gain some distance on both of our former selves. After graduation from law school, Powell clerked on the Court of Appeals for the Fourth Circuit. Since then, he has returned to government service for several years, during which he served in the Office of Legal Counsel and in the Solicitor General's Office, both at the United States Department of Justice. LaRue also took his paycheck from Uncle Sam, but as a trial lawyer. He tried criminal cases while serving in the United States Marine Corps and in the United States Department of Justice. With these different experiences, Powell and LaRue come to the issue using different perspectives. They each approach the topic, speaking about the Constitution outside of court, in different ways: Powell as an appellate lawyer, and LaRue as a trial lawyer.

Neither of these two different perspectives can claim any inherent superiority, but perhaps it will be valuable to compare them and to subject each to criticisms that flow naturally from the other. What criticisms and suggestions can the trial lawyer offer to the appellate lawyer, and vice versa? So, the first part of the agenda will be for LaRue to use his perspectives as a trial lawyer to judge how well Powell the appellate lawyer will do when he moves away from the elevated arena of appellate courts and high government offices into the rougher precincts in which LaRue spent his time. The criticism and suggestions must not run only one way. So, the second part of the agenda will be for me to imagine how Powell the appellate lawyer should judge the integrity of LaRue the trial lawyer's performances.[4] Has the trial lawyer betrayed the integrity of the law?

I. Powell's Thesis

At the heart of Powell's book, which we celebrate in this Symposium, is his thesis that one should not argue about the allocation of foreign affairs power by making traditional sorts of legal arguments.[5] Instead, the questions of power must be left to political argument.[6] Powell's thesis can easily be misunderstood. A traditional legalist might misinterpret Powell's book as merely asserting that most of the constitutional issues over allocations of power are "non-justifiable" and might apply this traditional label to the content of the book. To be sure, Powell would agree that the issues are non-justifiable, in the traditional sense of that term, but his thesis is considerably broader, more subtle, and more interesting than this traditional thesis. Let me explain how I understand the traditional thesis, and why I believe that Powell goes further.

The traditional thesis is that some controversies are not suitable for judicial determination. A controversy may perhaps not be "ripe" yet, or perhaps be "moot" (too soon or too late). Perhaps instead it is abstract, not concrete, and so forth.[7] One such category is the so-called "political question" doctrine, that is, some controversies are to be settled by other branches of government. The actual content of this doctrine is somewhat controversial, but for today, it is enough to say that one might call a controversy a "political question" if it might be better disposed of by the legislature or the executive, and one might reach this conclusion for any one of the following three reasons: (1) because no legal standards exist that the judiciary can accurately apply, (2) because the other branches of government have strong incentives to honor the standards that do apply, or (3) because the cost of judicial intervention would be greater than any benefits one can imagine.[8]

Powell's thesis is not only much stronger than the political question doctrine but also more interesting than that. Perhaps the best way to state his thesis is to allude to one of Powell's most famous law review articles. As many of you may know, his contribution to the so-called "original intent" debate was to argue that the Framers' original intent was that their original intent should not count.[9] So, by analogy to that article, one can say that Powell's contribution to the debate before us today is to argue that the best legal interpretation of the Constitution is that questions of the allocation of power over foreign affairs are not legal questions. Powell quotes John Marshall on this point, who said that these questions are questions of "political law."[10]

Why might Powell reach the conclusion that the allocations of power in foreign affairs are matters of "political law?" The Constitution grants power over matters of foreign affairs to the President, the Senate, and the Congress as a whole. This much is obvious from a simple reading of the constitutional text. As a practical matter, these constitutional powers can come into conflict as the several actors use their authority to influence the substantive content of American policy in foreign affairs. The timid flee from this conflict and conclude that unseemly conflict must be avoided, and all too often, the timid imagine that the law can be a means for avoiding conflict. Powell is bold. He asserts that there is nothing wrong with conflict.[11] He believes that it is entirely legitimate for each of the institutional actors (the President, the Senate, and the Congress as a whole) to attempt to influence the substance of foreign policy and to use their institutional powers as bargaining chips.[12] Furthermore, he believes that the resolution of these conflicts must be managed politically.[13]

I have spent a few paragraphs spelling out the actual thesis of Powell's book because I think that it follows from this thesis that Powell must speak to the laity, not just the clerisy of lawyers.[14] Powell's thesis states that when conflict arises political debate, not legal debate, is needed. For example, when Congress uses its power over appropriation to disagree with presidential policy, or when the President uses his power over diplomatic communications to disagree with congressional policy, it follows inevitably that the debate must be outside of the courts and must be political in nature. Unfortunately, political debate can be sidetracked from the crucial issues when the debate turns legal, that is, when someone challenges the legitimacy of the congressional power to disagree with the President or of the Presidential power to disagree with Congress.[15] Consequently, the public needs to be persuaded that both Congress and the President have legitimate authority in foreign affairs and, further, that the judiciary is not the institution to resolve conflicts between them.

Of course, Powell is not alone in saying that constitutional thinkers need to address the public and persuade "We, the People" about who has what authority under the Constitution and why. In this ambition, he resembles Philip Bobbitt, who has the same ambitions.[16] So how will Powell speak? He is explicit on this; he wishes to educate the laity on how to use the common law forms of argument.[17] This ambition is honorable,[18] but it is unlikely to succeed unless scholars know how to speak outdoors. Do they know how to speak outdoors?

II. The Modalities of Constitutional Argument

When Powell gets down to the business of actually making his arguments about how we should construe the Constitution, he uses the famous modalities of constitutional argument that mark the actual practice of constitutional law, and of course, he cites Bobbitt, acknowledging the debt we all owe to him.[19] So, let me set forth Bobbitt's modalities, as my question is how well these forms of argument can move from indoors to outdoors.[20]

In the actual practice of constitutional argument, one normally begins with the text.[21] Of course, one has more than bare words in a textual argument; one also has the canons of interpretation that lawyers traditionally bring to a text, and the most relevant canon for constitutional argument is perhaps what statutory lawyers call "the whole act rule."[22] One must read each individual provision of the Constitution in the context of the whole document. As we all know, the constitutional text is...