The Abiding Exceptionalism of Foreign Relations Doctrine
In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decision-making in the foreign affairs area in previous years. But foreign affairs doctrine remains resolutely exceptionalist in some areas beyond those identified by the authors as reflecting the “unfinished business” of normalization. When these additional manifestations of exceptionalism are added to the ones the authors have identified, the claim that exceptionalism is now exceptional seems overstated.Part I of this response discusses the authors’ definition of exceptionalism and normalization, which the authors describe as “an independent contribution” of the article, “regardless of whether one agrees with [its] broader normalization thesis.” As noted, their definition collapses the question of normalization with the proper interpretation of the Constitution.Part II challenges the authors’ characterization of some doctrines or decisions as exceptionalist. The authors cite Missouri v. Holland as an example of foreign relations exceptionalism. But the holding of Missouri v. Holland is supported by the constitutional text and is consistent with original intent and the case law preceding the decision.Part III focuses on the judicial enforcement of treaties. As I have written at some length in these pages, the Supremacy Clause establishes that treaties are to be enforceable in the courts in the same circumstances as statutes. Yet the courts have engrafted onto the Supremacy Clause a distinction between self-executing treaties and non-self-executing treaties, with only the latter being judicially enforceable.
The exception rather than the rule.
Scripture taken from the New American Standard Bible Copyright © 1960, 1962, 1963, 1968, 1971, 1972, 1973, 1975, 1977, 1995 by The Lockman Foundation. Used by Permission. All other content, materials, etc. on this site are Copyright ©2011 by Walk with the Word. Permission for personal and/or not‐for‐profit use freely granted. Any questions or comments concerning Walk with the Word should be directed to Servant@WalkWithTheWord.org
Aristocratic Century: The sinews of power: political
In his excellent book on the Secretaries of State, Mark Thomson offered ‘the paradox of continuing domination of the aristocracy and the simultaneous insignificance of the House of Lords, per se ’. It is true that, by the beginning of the eighteenth century, the supremacy of the House of Commons in financial matters was a wellestablished convention. The claims of the Commons to an undisputed control over money matters, which had been urged before the Civil War, were resumed immediately after the Restoration and a protracted dispute with the House of Lords began. In 1661 the Lords resolved that there were no precedents in history for this new claim by the House of Commons. In 1671, the Commons retorted that taxation ought not to be questioned by the Lords and in 1678 they reiterated that supply was ‘the undoubted and sole right of the Commons’ and ‘ought not to be changed or altered by the House of Lords’. The Lords' attempt in 1692 to assess their own taxes was also abandoned, though they retired under cover of a rather insubstantial smoke-screen that they maintained their power of amendment to be a ‘fundamental, inherent and undoubted right from which their lordships can never depart’. That established, they departed. Geoffrey Holmes quotes a nice example from 1702 when the bishop of Carlisle found himself the only peer answering to a money bill, ‘no other lord in the House regarded what was doing, this being only (pro forma) to preserve a seeming right to dissent from, or amend, any part of a money bill’.