The Prospects for the Peaceful Co-Existence of Constitutional and International Law
9 Pages Posted: 7 Dec 2009 Last revised: 15 Dec 2009
Date Written: December 3, 2009
There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logical though controversial conclusions. But Paulsen and I are not in complete agreement, especially in his almost gleeful dismissal of all international law as mere politics. In this Response, I will explain how one can accept Paulsen’s constitutional arguments while continuing to believe that international law is more than an illusion for the United States. I will begin by situating Paulsen’s argument within the broader intellectual debate over the relationship between international law and the U.S. Constitution. I will then argue that although his constitutional arguments are sound, they do not necessarily lead to the conclusion that international law has no legal force. To the contrary, I will argue that where the political branches clearly (and pursuant to their constitutional powers and following the proper constitutional processes) decide to bind the United States to follow rules of international law as law, the United States is bound as deeply as it is bound to any other nonconstitutional legal norm.
Keywords: constitutional law, international law
JEL Classification: K33
Suggested Citation: Suggested Citation