The Limits of Custom in Constitutional and International Law

This Article does not contend that arguments for extension of custom are illegitimate. Instead, it makes two more limited claims. First, there is an important difference between arguments from pure custom and arguments for the extension of custom, with the latter being more properly called common law arguments. Second, the legitimacy of common law arguments in some fields, especially constitutional law and international law, is substantially more problematic than the legitimacy of arguments from pure custom. The Article develops as follows. Part II sets out in greater detail the proposed distinction between arguments from pure custom and arguments for extension of custom. Part III illustrates the distinction by reference to the constitutional debate over the President’s military intervention in Libya and to the customary international law debate over the secondary liability of multinational corporations. These Parts are intended to be only descriptive, to illustrate the need to reconsider the general category of arguments from custom. Part IV then turns to normative considerations, and in particular argues that questions of legitimacy are substantially different for the two types of arguments described in the prior Parts: arguments from pure custom have more secure legitimacy than arguments for the extension of custom because the former but not the latter can be said to rest on general consent. This Part further argues that the concern is especially acute for customary international law because traditionally, customary international law grounds its legitimacy in consent. Arguments not grounded in consent require a complete reformulation of the authority of customary international law. In contrast, the message for constitutional law is less certain because constitutional law is more conflicted regarding the theoretical source of its legitimacy

Missouri v. Holland and Historical Textualism

This essay does not undertake to say what the Holland rule should be today; instead, it advances a methodology to determine the Constitution\u27s original meaning on the matter. Its approach, for want of a better phrase, I will call historical textualism. In brief, historical textualism finds constitutional meaning in the specific words of the Constitution\u27s text as they were situated and understood in the context in which they were written. Applying that approach, I find full support for Holland\u27s conclusion in the Constitution\u27s original meaning. That conclusion differs from other studies which have relied on originalist analysis to find subject matter limits on federal treatymaking. Drawing this contrast underscores the differences between the approach I advocate and other approaches for determining historical meaning. The essay proceeds as follows. Part II outlines historical textualism as an approach to determining the Constitution\u27s original meaning. Part III undertakes the Holland inquiry regarding the scope of the treatymaking power using a historical textualist approach and concludes that the Constitution\u27s original meaning imposes no generalized subject matter limitations on federal treatymaking akin to those Article I, Section 8 places on Congress\u27 lawmaking power. Part IV examines leading studies that reach the opposite conclusion, and shows how these differences are driven principally by differences in interpretive methodology

Textualism and War Powers

This Article explores the eighteenth-century use of the phrase declare war, with the goal of shedding some light upon the original understanding of the Constitution\u27s Declare War Clause. It finds that declaring war in the eighteenth century had a broader meaning than is commonly supposed: Nations could declare war by formal proclamation, but nations could also declare by action alone. An armed attack showing an intent to settle differences between nations by force created a state of war between those nations. Launching such an attack, even in the absence of a formal proclamation, was called declaring war. As the Article explains, this provides a textual basis for the common assertion that Congress\u27s constitutional power to declare War broadly encompasses the power to initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress\u27s approval so long as no formal declaration is involved. The Article further argues, however, that since Congress\u27s constitutional power is only to declare war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war--even if they involve the use of military force or the threat or likelihood of war--do not require congressional authorization

Missouri v. Holland and Historical Textualism

This essay does not undertake to say what the Holland rule should be today; instead, it advances a methodology to determine the Constitution\u27s original meaning on the matter. Its approach, for want of a better phrase, I will call historical textualism. In brief, historical textualism finds constitutional meaning in the specific words of the Constitution\u27s text as they were situated and understood in the context in which they were written. Applying that approach, I find full support for Holland\u27s conclusion in the Constitution\u27s original meaning. That conclusion differs from other studies which have relied on originalist analysis to find subject matter limits on federal treatymaking. Drawing this contrast underscores the differences between the approach I advocate and other approaches for determining historical meaning. The essay proceeds as follows. Part II outlines historical textualism as an approach to determining the Constitution\u27s original meaning. Part III undertakes the Holland inquiry regarding the scope of the treatymaking power using a historical textualist approach and concludes that the Constitution\u27s original meaning imposes no generalized subject matter limitations on federal treatymaking akin to those Article I, Section 8 places on Congress\u27 lawmaking power. Part IV examines leading studies that reach the opposite conclusion, and shows how these differences are driven principally by differences in interpretive methodology