63 Pages Posted: 1 Aug 2011 Last revised: 27 Sep 2012
Date Written: 2011
The received wisdom tends to treat constitutional arrangements, such as the allocation of foreign affairs authority, as efficiency enhancing constraints imposed on political actors that were originally negotiated and are currently being interpreted behind a benign veil of ignorance. In this picture, since the net distributive effects of the foreign affairs powers on specific societal groups are considered to be uncertain and unpredictable, the incentive by such groups to engage in an instrumental or self-serving interpretation of such powers is presumably blunted. This Paper suggests, on the contrary, that partisan groups can often reasonably predict ex ante or determine ex post how an expansive or constrained interpretation of specific foreign affairs powers is likely to affect their material or ideological objectives. The issue of interpretative choice in foreign affairs powers usually involves the outcome of the struggle between right and left leaning groups in which each side attempts to increase the number of veto points (or constitutional constraints) on issues that favor the opposition, and decrease the number of veto points on issues that benefit their favored constituencies. Using this framework, this Paper analyzes how postwar partisan conflict between Republican and Democratic leaning constituencies on issues like human right treaties and war powers has both spawned and restricted the scope of foreign affairs authority in the United States. In the early post WWII era, when the New Deal politics of guns and butter were complementary, progressive Democratic constituencies were supportive of a proactive military agenda and favored greater executive branch flexibility in both war powers and in the ratification of human rights treaties, whereas Republican leaning constituencies (and conservative Democrats) were against. Starting in the late-1960s, as fallout of the Vietnam War, the positions of the Republican and Democrat Parties started to switch gradually on war powers. By the1980s, when President Reagan created a cleavage between the politics of guns and butter, in which the growth of the growth of the national security state was decoupled from that of the welfare state, Republican leaning constituencies cemented their support of greater executive branch flexibility in war powers but not in human rights treaty ratification, whereas progressive Democratic constituencies largely adopted an opposite set of institutional preferences. Finally, this Article concludes by critically examining the normative implications of using increased judicial oversight to counteract the effects of foreign affairs partisanship.
Keywords: separation of powers, foreign affairs, American foreign policy
Suggested Citation: Suggested Citation
Nzelibe, Jide, Our Partisan Foreign Affairs Constitution (2011). APSA 2011 Annual Meeting Paper; Minnesota Law Review, Forthcoming; Northwestern Public Law Research Paper No. 12-27. Available at SSRN: https://ssrn.com/abstract=1900155 or http://dx.doi.org/10.2139/ssrn.1900155