McGuinness: Old W(h)ine, Old Bottles: A Reply to Professor Paulsen

Margaret E. McGuinness (Univ. of Missouri - Law) has posted Old W(h)ine, Old Bottles: A Reply to Professor Paulsen (Yale Law Journal Online, forthcoming). Here's the abstract:

This essay reply to Professor Michael Stokes Paulsen, "The Constitutional Power to Interpret International Law," 118 Yale L.J. 1774 (2009) argues that Paulsen’s static, formalist portrait of the foreign affairs Constitution stands in stark contrast to the dynamic realities of transnational lawmaking today.

Paulsen’s central claim, that the U.S. Constitution is the domestic means through which United States’ international legal obligations are realized and enforced, is neither controversial nor “threaten[ing to] all that the community of ‘international law’ scholars hold most dear.” His corollary claim, that the Constitution “binds” U.S. actors in a way that international law does not, simply does not reflect reality. To the contrary, as Paulsen recognizes, most international obligations undertaken by the United States become domestic law through well-accepted constitutional mechanisms and are carried out in rather unremarkable ways, with disputes about their application or interpretation being resolved on a regular basis through domestic or international dispute settlement bodies. For all Paulsen’s claims of the “fogginess” that surrounds “vague” and “elliptical” international law, U.S. participation in the international legal system operates smoothly and in ways largely indistinguishable from the application of domestic law.

Paulsen’s secondary claim, which he argues flows from the claim of constitutional superiority over international law, is that international law is not “law” at all, but rather policy. This attack on what Steven Colbert might call the “lawiness” of international law has a long pedigree. But whether international law represents “law,” “policy,” “political commitment,” “best practices,” or something else, does not answer the more interesting and salient question of whether international law alters the behavior of actors in practice and not just in theory.

Just as non-legal domestic costs alter the behavior of the President, Congress, and the Court, the “policy” costs of non-compliance with international obligations posited by Paulsen in some cases are real enough to actually change the behavior of American constitutional actors. The Bush administration’s use of torture against detainees captured as part of the post-9/11 war against terrorism is a useful illustration of how costs ultimately restrained behavior. Despite all the constitutional powers that Paulsen posits were available to the President – the power to unilaterally breach both the Geneva Conventions (“GCs”) and the Convention Against Torture (“CAT”) in whole or in part – President Bush never publicly repudiated or stated that he was breaching or suspending those obligations. To the contrary, President Bush and other officials repeatedly stated during the period 2004-2007 that the administration “does not torture,” that its programs complied with domestic and international law, and that it remained committed to compliance with the GCs and the CAT. This is a remarkable fact given that many key members of the Bush legal policy team held views of international law and the Constitution similar to Professor Paulsen’s.

However one characterizes those costs, the torture narrative explains how external costs constrained actors and altered their interest calculations. The altered calculation of interests in turn affected how the constitutional actors in the U.S. (especially, perhaps, the Supreme Court) interpreted and applied their own constitutional powers. Paulsen’s analysis concedes that these costs of non-compliance may be real; he just does not want the corresponding constraints of those costs to be called “law.” But the label is not important to identifying the binding force of international law. Recent history amply demonstrates that it is not the force of international law that is, as Paulsen argues, “largely an illusion,” rather it is the idea of any domestic constitutional order can cut itself from considerations of international law that is illusory.