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Originalism and the Difficulties of History in Foreign Affairs


Eugene Kontorovich


Northwestern University Law School

February 11, 2009

St. Louis University Law Journal, Vol. 53, No. 1, 2008
Northwestern Public Law Research Paper No. 09-07

Abstract:     
This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting system of admiralty.

Seen in this historic light, admiralty, especially in the early years of the Republic, was an anomalous island of internationalism within the constitutional system. Thus to the extent that the history of foreign relations law is intertwined with admiralty, the lessons of this history cannot be simply transposed to modern foreign relations jurisprudence. This could have potentially significant implications, given that a list of canonical nineteenth century foreign relations cases reads like a port registry: The Schooner Exchange, Charming Betsy, La Jeune Eugenie, The Antelope, and The Paquete Habana.

This Article is part of the symposium at the Saint Louis University School of Law on "The Use and Misuse of History in Foreign Relations Law," and comments on Prof. Ingrid Wuerth's An Originalism for Foreign Affairs? Prof. Wuerth questions the applicability of originalism. This Article argues that the originalist method of constitutional interpretation applies to foreign affairs questions, and not just to matters of individual rights. However, as the admiralty example developed here shows, Prof. Wuerth is correct that foreign affairs originalism requires a great sensitivity to historical context. Ideas developed within a particular legal framework may not apply when that framework no longer exists.

Number of Pages in PDF File: 15

Keywords: originalism, admiralty, universal jurisdiction

JEL Classification: K19, K33

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Date posted: February 12, 2009 ; Last revised: February 15, 2009

Suggested Citation

Kontorovich, Eugene, Originalism and the Difficulties of History in Foreign Affairs (February 11, 2009). St. Louis University Law Journal, Vol. 53, No. 1, 2008; Northwestern Public Law Research Paper No. 09-07. Available at SSRN: http://ssrn.com/abstract=1341331

Contact Information

Eugene Kontorovich (Contact Author)
Northwestern University Law School ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
(212) 503-0429 (Phone)
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