Footnotes (56)



Foreign Affairs Originalism in Youngstown's Shadow

Stephen I. Vladeck

University of Texas School of Law

December 12, 2008

St. Louis University Law Journal, Vol. 53, 2008
American University, WCL Research Paper No. 2008-83

In An Originalism for Foreign Affairs?, Professor Ingrid Wuerth argues that originalism, under a number of different conceptualizations, is an awkward fit in the field of foreign affairs. In one sense, as Professor Wuerth suggests, originalism fails to answer many of the central questions of foreign affairs scholarship. In another sense, certain foreign affairs questions may, in her words, undermine the positive case for originalism. Either way, Professor Wuerth concludes, originalists should pay more attention to foreign affairs, and foreign affairs scholars should pay more attention to the competing methodologies of contemporary constitutional interpretation.

Rather than take up Professor Wuerth's thesis on its terms, in this short response, I want to focus on foreign affairs originalism and the courts, notwithstanding Professor Wuerth's quite accurate observation that a good deal of constitutional interpretation vis-a-vis foreign affairs takes place outside the courtroom. The question I want to ask (and hopefully answer) is whether, in those few instances where the courts do get involved in resolving the types of disputes here at issue, Professor Wuerth's careful analysis might actually make a difference. Put another way, is there a there, there? I suspect that one could easily take from Professor Wuerth's article the sentiment that originalism is, ultimately, of exceedingly little help to contemporary courts in resolving serious and difficult foreign affairs questions, especially in the context of conflicts between the legislative and executive branches.

But my thesis is that the real culprit behind this difficulty is neither originalism as an interpretive method nor foreign affairs as a body of constitutional law. Rather, the reason why the case for foreign affairs originalism may ultimately be so unconvincing is the movement toward functionalism as a means of resolving separation-of-powers conflicts, particularly in cases implicating foreign affairs. Thus, whatever may be said about the suitability or theoretical utility of originalism generally, or in the field of foreign affairs specifically, it is hard to square any case for foreign affairs originalism with the methodological framework at the heart of the Supreme Court's contemporary separation-of-powers jurisprudence.

Number of Pages in PDF File: 11

Keywords: Wuerth, Youngstown, originalism, foreign affairs, constitutional interpretation

Open PDF in Browser Download This Paper

Date posted: December 12, 2008  

Suggested Citation

Vladeck, Stephen I., Foreign Affairs Originalism in Youngstown's Shadow (December 12, 2008). St. Louis University Law Journal, Vol. 53, 2008; American University, WCL Research Paper No. 2008-83. Available at SSRN: http://ssrn.com/abstract=1315317

Contact Information

Stephen I. Vladeck (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
5124759198 (Phone)

Feedback to SSRN

Paper statistics
Abstract Views: 943
Downloads: 73
Download Rank: 244,352
Footnotes:  56

© 2016 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollobot1 in 0.187 seconds