The bicentennial of the United States Constitution has been marked by much celebration and some stocktaking. The Framers have been fully—if not fulsomely—praised, and there appears to be general enthusiasm about the legacy they left us. However, as regards the constitutional dispositions for the conduct of foreign affairs, there appears to have been little attention to the Framers and little inclination to celebrate what they ordained. Few have taken this occasion to expose how we got where we are from where they were; efforts to take stock have been hampered by uncertainty and shouted down in controversy.

The President, says the Constitution of the United States, “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” What working relationship between the President and the Senate was this provision intended to establish in the complex and delicate business of determining the foreign policy of the nation and conducting its foreign relations in accordance with that policy?

One of the features of the Marshall Court’s business that emphasizes the contrast between that Court and its modern counterpart is the attention given to piracy cases. Piracy, defined as the unauthorized deprivation of property on the high seas, has disappeared from the present Court’s docket, and virtually disappeared as a crime; but from 1815 to 1823, piracy cases were among the most numerous and controversial of those decided by the Court.

One of the most frequently overstated concepts in American constitutional theory is the “separation” of powers. The Framers of the Constitution began with the proposition that concentration of power was to be avoided. They understood, on the other hand, that if governmental powers and responsibilities were actually set apart, each branch would exercise its powers in isolation from the other coordinate branches, to the detriment of cooperation and accommodation among them. Governance would be at best inefficient and at worst impossible.

In the making and conduct of foreign policy, Congress and the President have been rivalrous partners for 200 years. It is not hyperbole to call the current round of that relationship a crisis—the most serious constitutional crisis since President Franklin D. Roosevelt tried to pack the Supreme Court in 1937. Roosevelt’s court-packing initiative was highly visible and the reaction to it was violent and widespread. It came to an abrupt and dramatic end, some said as the result of divine intervention, when Senator Joseph T. Robinson, the Senate Majority Leader, dropped dead on the floor of the Senate while defending the President’s bill. Everyone knew that Robinson hated the proposal, and was speaking for it only as a matter of political duty. The bill was discreetly buried shortly thereafter, the Court having meanwhile adjusted some of its doctrine to the prevailing winds. One Justice resigned.

In the wake of Vietnam and Watergate, Congress set out to attack the imperial Presidency and to recapture its “historic constitutional role” in foreign policy. The tools of congressional activism included the National Commitments Resolution, the War Powers Resolution, the Case Act, the legislative veto over arms sales and nuclear exports, trade restrictions aimed at the Soviet Union and regulation of intelligence activities. In response, Presidents Carter and Reagan charged that Congress was invading presidential prerogatives. Joined by former executive branch officials and academic commentators, they saw an imperial Congress and believed the solution was a strengthened Presidency.

Of all the revelations emanating from the Iran-contra hearings, the most startling constitutional claim was the assertion that Congress cannot control foreign affairs by withholding appropriations. According to the argument advanced by some administration officials, if Congress prohibits the use of appropriations for foreign policy objectives—as it did with the Boland amendment—the President can nevertheless continue his goals by soliciting funds from the private sector and from foreign countries. If one well dries up, tap another. This theory has profound implications for executive-legislative relations and constitutional government.

In matters of foreign relations and national security, Presidents believe they know best, because they, alone, possess the information, advice and range of means to meet an imminent threat. It follows that when the judiciary or the Congress seeks to second-guess the exercise of what Chief Executives now are pleased to call the “foreign relations and national security power,” they are regarded as gratuitous intermeddlers. This is nowhere more tenaciously asserted by Presidents than in matters pertaining to the deployment of U.S. armed forces for combat abroad.

Wholly apart from the questions of whether and under what circumstances major coercion is permissible under international law and whether minor coercion, including threats, is lawful, there is a broad and deep national consensus that the United States should continuously develop a military capacity sufficient for a range of contingencies and maintain it in a state of readiness. The consensus has been far less certain with regard to who will decide, and how, to initiate and use this capacity, at varying intensities. The original terms of the Constitution have been invoked by partisans of opposing views, but debate in those terms has proved inconclusive. Behind the legal bickering, a complex, but unstated, operational code has developed, allocating competence to initiate, direct and terminate different types of coercion among the branches. Parts of the operational code are clear and relatively stable over time. Other parts are less certain and can be projected only with qualifications, reservations or contingencies.

As the Constitution enters its third century, its framework for the exercise of war powers is under siege. Presidential exercises of war powers to repel attacks, rescue lives, protect property, retaliate and threaten have posed the most persistent and visible challenge to that framework. But an equal theoretical challenge is posed by a power that the President has used only twice, the nuclear war power. Part I of this essay describes that challenge. Part II evaluates the constitutionality of the existing distribution of nuclear war powers. Part III identifies—but does not explore—alternatives.

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action—before the intelligence oversight reforms of the 1970s—Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to “perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct,” Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an end with the Watergate disclosures of intelligence activities that many Americans found reprehensible, the ensuing investigations into assassination attempts and other controversial covert actions, and the adoption of a new statutory framework for congressional oversight of the intelligence agencies.

Disputes with foreign policy implications have often been brought to the federal courts. These cases call attention to the tension between the authority of the political branches to conduct the foreign relations of the United States and the authority of the courts to render judgments according to the law. How this tension is resolved, in turn, bears directly on the commitment of the United States to the rule of law.

The unevenness of congressional oversight, the proclivity of executive foreign affairs agencies for violating the law and the traditional responsibility of the courts as the last guardians of the Constitution—all point to the propriety of an active role for the judiciary in ensuring governmental compliance with the law. Specifically, courts should not decline to resolve foreign affairs disputes between Congress and the President because they present “political questions.” The recent case of Lowry v. Reagan illustrates the serious systemic damage wrought by judicial abstention in such disputes.

A major purpose of the Constitution was to place control of foreign relations firmly in the hands of the national Government. In 1788 James Madison wrote in The Federalist: “If we are to be one nation in any respect, it clearly ought to be in respect to other nations.” Yet a recent article, 200 years later, reports approvingly that “more than 1000 U.S. state and local governments of all political stripes are participating in foreign affairs, and their numbers are expanding.” Criticizing this development, another recent article comments: “The national interest demands that local interference in foreign and defense policy be curtailed before the federal government finds itself hamstrung by hundreds of would-be secretaries of state touting their own parochial agendas. … Foreign policy must be made in Washington and not in the citizens’ backyards.” My intent here is briefly to describe the current situation, and to indicate some of the legal and policy factors relevant to assessing the propriety of state and local government involvement in foreign affairs.

The fundamental principles that guide determinations about the appropriate relationship between state and national authority in matters affecting the foreign affairs of the United States began to evolve even before the ratification of the Constitution in 1789. The centralization of governmental power in this field is reflected in microcosm in the three great state papers of the United States. The nation began in 1776 as “United Colonies” that were “Free and Independent States” under the Declaration of Independence; developed into a “firm league of friendship” under the Articles of Confederation in 1781; and became a “more perfect union” created by the people, not by its constituent political units, under the Constitution in 1789.

Foreign affairs, and its close relation national security, has been a graveyard for civil liberties for much of our recent history. The questions to be answered are not whether this is true—it demonstrably is—but why we have come to this pass and how we might begin to relieve the Bill of Rights of at least some of the burden thus imposed on it.

A decade ago Professor Henkin remarked that “there has been almost no examination at all of the relation between international human rights and the American Constitutional version of human rights.” Since then he has done much to fill this gap in the literature, as has, more recently, a distinguished barrister/scholar from Great Britain. Nevertheless, it may be useful, in this symposium celebrating the bicentennial of the U.S. Constitution, to survey both the contribution it has made to the development of international human rights law and the extent to which the latter has influenced the evolution of U.S. constitutional law.

In two cases decided in the afterglow of the centennial of the U.S. Constitution, the Supreme Court said nearly everything the modern lawyer needs to know about the source and extent of Congress’s power to regulate immigration. The cases sustained the constitutionality of the first significant congressional restrictions on immigration—the shameful Chinese exclusion laws. Constitutional analysis of the immigration power has yet to shed the original sins of the Court’s ratification of Congress’s ignominious legislation.

In recent years federal courts have faced a growing number of challenges to United States actions abroad. Citizens living abroad have brought claims alleging that their property was unlawfully taken or that their lives were threatened by United States governmental action. Aliens living in foreign countries have also invoked constitutional protections—Nicaraguans have alleged torture and assassination attributed to CIA activities in Central America; a Mexican alleged that his home in Mexico was searched by Drug Enforcement Agency officials without a search warrant; a Lebanese citizen claimed that he was unlawfully arrested and interrogated in international waters by U.S. agents; a Polish refugee tried for hijacking in a special United States court convened in Berlin sought the right to a jury trial. These cases test the extent to which the Constitution limits U.S. conduct abroad.

In recent years, the Congress of the United States has enacted a series of laws criminalizing certain activities committed outside the territory of the United States, even by persons who are not nationals of the United States. The international lawyer would doubtless characterize those laws as assertions by the United States of authority to exercise jurisdiction to prescribe laws on the basis of the principle of “passive personality”—to punish actions directed at the state’s nationals—or perhaps as new applications of principles of universal jurisdiction; one might then examine those laws in the light of recent developments in the international law governing state jurisdiction to prescribe.