Wuerth: International Law and Constitutional Interpretation

My colleague Ingrid B. Wuerth (Cincinnati - Law; Vanderbilt - Law, visiting) has posted her excellent article International Law and Constitutional Interpretation: The Commander-in-Chief Clause Reconsidered (Mich. L. Rev., forthcoming). Here's the abstract:

The Commander-in-Chief Clause is a difficult, under-explored area of constitutional interpretation. It is also an area in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This article analyzes why the Commander-in-Chief Clause is hard, and argues that international law helps resolve some of the difficulties that the Clause presents. Because of problems with originalist analysis, lack of judicial competence in military matters, and changes over time, the Court has relied on heavily on "second order" interpretive norms like congressional authorization and executive branch in interpreting the war and foreign affairs powers of the President. International law to which the United States is a party functions itself as a second order interpretive norm, in many ways similar to other forms of congressional authorization or executive branch practice. But because it is mediated in unique ways – by other countries and within our own domestic political system – international law is an especially compelling way to resolve problems with judicial competence and changes over time. International law also makes a powerful contribution to an originalist understanding of the Commander-in-Chief Clause: careful consideration of eighteenth century war-related international law demonstrates that the Constitution vested control over these aspects of international law with Congress, not the President.