Why Curtiss-Wright is Wrong: The Myth of Extraconstitutional Foreign Affairs Power

Abstract:     
In United States v. Curtiss-Wright Export Co., the Supreme Court asserted that federal power in foreign affairs arises extraconstitutionally: that is, it derives not from a grant of power to the federal government in the Constitution, but as "inherently inseparable from the conception of nationality." Specifically, the Court argued that "external sovereignty" -- meaning foreign affairs power -- passed from Britain to the Union at the time of independence; it was never held by the states, and, thus, existed outside the constitutional structure of delegated powers. While commentators have criticized this theory as inconsistent with state sovereignty, they have not been able to make an airtight case against it because the concept of state sovereignty is itself so heavily disputed. This article approaches Curtiss-Wright from a different perspective: it does not seek to defend state sovereignty, to reject inherent federal powers in all areas, or to resolve the relationship between the states and the union at the time of independence. Rather, it asks a specific constitutional question: what was the understanding at the time the Constitution was drafted as to the source of foreign affairs powers. Once the question is framed in this manner, the article argues that Curtiss-Wright can be conclusively rejected. The text of the Constitution, the drafters' descriptions of it, the practice under the articles of confederation, and the discussions during the ratification debates all show that in 1787-89 everyone thought of foreign affairs powers as delegated powers. This does not, of course, show that there were no inherent federal powers, nor resolve larger questions about state and federal sovereignty, but it does show that Curtiss-Wright's narrow historical claim -- that the Constitution presupposes inherent federal power in foreign affairs -- is incorrect. Thus, this article seeks to refute Curtiss-Wright, even in the eyes of one who believes that the states were never fully sovereign, that the national government exercised inherent foreign affairs power after independence, and that after ratification of the Constitution the federal government continued to exercise some inherent powers.

Accepted Paper Series