The Future and Past of U.S. Foreign Relations Law

40 Pages Posted: 5 Oct 2004


This article looks ahead toward the increasing prominence of foreign relations law issues in U.S. constitutional jurisprudence while also considering recent backward-looking, historicist efforts to provide answers to such issues as they arise. It therefore first reviews recent case law that has resulted in light of globalization and U.S. foreign policy initiatives, including the "war on terrorism." Among these include Hamdi v. Rumsfeld, Sosa v. Alvarez-Machain, and Lawrence v. Texas. It also surveys the often historically-based answers put forward by the so-called "new foreign affairs law" school, which generally argue for a greater emphasis on national sovereignty than the prevailing foreign relations law "orthodoxy" as set forth in the Restatement (Third). Next, the article focuses on the historical accounts on which many of these "new" foreign affairs solutions are built, and exposes these as fundamentally inconsistent with the general scholarly narrative of the era as well as with the specific historical sources bearing upon foreign affairs. The underbrush cleared, the article then considers Justice Jackson's effective reliance on evolving constitutional custom in Youngstown as the counterintuitive path along which the history of the Founding points foreign relations to follow.

Suggested Citation

Flaherty, Martin S., The Future and Past of U.S. Foreign Relations Law. Available at SSRN:

Martin S. Flaherty (Contact Author)

Fordham Law School ( email )

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