Thursday, May 22, 2008

Wuerth: An Originalism for Foreign Affairs?

Ingrid B. Wuerth (Vanderbilt Univ. - Law) has posted An Originalism for Foreign Affairs? (Saint Louis University Law Journal, forthcoming). The piece comes out of a symposium on "The Use and Misuse of History in U.S. Foreign Relations Law" that was held at the Saint Louis University School of Law in March. Here's the abstract:
Legal scholarship on foreign affairs frequently focuses on the Constitution's text and original meaning, but generally does not fully engage debates about originalism as a method of modern constitutional interpretation. For its part, much of the scholarship defending originalism as a methodology has said little explicitly about foreign affairs. This short article describes three contemporary normative arguments in favor of originalism - those advanced by Randy Barnett, Keith Whittington, and John McGinnis and Michael Rappaport - and then considers their application to foreign affairs. It concludes that these arguments are at best underdeveloped and at worst weak when it comes to many of constitutional issues that arise in the foreign affairs area. Originalists could clarify and strengthen their normative arguments if they focused greater attention on foreign affairs, particularly non-judicial constitutional interpretation, the relationship between executive and congressional power, and consequentialist problems that arise in this context. For foreign relations scholars, particularly those focused on history, this contribution is meant to encourage greater engagement with the methodology of contemporary constitutional interpretation.