The Constitution




David Gray Adler

There is no comprehensive grant of a foreign affairs authority in the U.S. Constitution. Rather, the constitutional text carefully enumerates and allocates to the three branches of government a series of specific foreign relations powers, responsibilities, and duties. The relatively lean text, and the fact that it omits mention of particular powers, has no doubt contributed to the constitutional tension, controversy, and occasional crises that have marked American foreign affairs. Nevertheless the Constitution vests in Congress the bulk of the nation's foreign policy powers, a design which assigns to Congress senior status in a partnership with the president for the formulation, management, and conduct of U.S. foreign policy. The constitutional blueprint for foreign relations reflects the Constitutional Convention's conspicuous penchant for collective decision making and its fear of unilateral executive power.

This arrangement, however, has been over-whelmed in the post–Cold War era by sweeping assertions of unilateral presidential power that have laid the basis for a presidential monopoly over foreign affairs and advanced a conception of executive authority so capacious that it has produced a wide gulf between constitutional principle and governmental practice. To understand the constitutional allocation of foreign relations powers, it is necessary to examine the Constitution—the text, its design, the intentions of its Framers, and its history.

BIBLIOGRAPHY

Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, 1974. Penetrating study that includes valuable chapters on presidential power in foreign affairs and warmaking.

Bestor, Arthur. "Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined." Seton Hall Law Review 5 (1974). Powerful analysis of the legislative history behind the foreign affairs provisions of the Constitution.

Casper, Gerhard. "Constitutional Constraints on the Conduct of Foreign Policy: A Nonjudicial Model." University of Chicago Law Review 43(1976). Influential study of foreign affairs from a legal and constitutional perspective.

Corwin, Edward S. The President: Office and Powers, History and Analysis of Practice and Opinion, 1787–1984. 5th rev. ed. New York, 1984. Very valuable on presidential powers in foreign policy.

DeConde, Alexander. Presidential Machismo: Executive Authority, Military Intervention, and Foreign Relations. Boston, 2000. Important account of the reasons why presidents engage in unilateral acts of warmaking.

Draper, Theodore. A Very Thin Line: The Iran-Contra Affairs. New York, 1991. Detailed and critical analysis of the political, legal, and policy issues.

Ely, John Hart. War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath. Princeton, N.J., 1993. Insightful critique of the constitutional debate and controversies surrounding the Vietnam War.

Fisher, Louis. "How Tightly Can Congress Draw the Purse Strings?" American Journal of International Law 83 (1989). An examination of the use of the power of the purse in foreign affairs.

——. Presidential War Power. Lawrence, Kans., 1995. Concise, penetrating analysis of the war power.

——. Constitutional Conflicts Between Congress and the President. 4th rev. ed. Lawrence, Kans., 1997. Excellent examination of the separation of powers issues.

Glennon, Michael J. Constitutional Diplomacy. Princeton, N.J., 1990. Highly useful study of the constitutional arrangement for the conduct of foreign policy.

Hayden, Ralston. The Senate and Treaties: 1789–1817. New York, 1920. Fine historical and analytical study of the Senate's role in treaty making.

Henkin, Louis. Constitutionalism, Democracy, and Foreign Affairs. New York, 1990. Fine analysis of theoretical and constitutional issues relevant to foreign policy.

——. Foreign Affairs and the Constitution. 2d ed. Oxford, 1996. Excellent, comprehensive analysis of the constitutional law of foreign policy, with good footnotes.

Johnson, Loch K. The Making of International Agreements: Congress Confronts the Executive. New York, 1984. Examination of the nature, uses, and impact of executive agreements.

Keynes, Edward. Undeclared War: Twilight Zone of Constitutional Power. University Park, Pa., 1982. Powerful, illuminating study of the legal issues surrounding the war powers debate.

Koh, Harold Hongju. "The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations." University of Pennsylvania Law Review 107 (1959). Useful on relationships between treaties and acts of Congress.

——. The National Security Constitution: Sharing Power After the Iran-Contra Affair. New Haven, 1990. Detailed examination of foreign relations law and the responsibilities of the three branches of government.

Lobel, Jules. "Covert War and Congressional Authority: Hidden War and Forgotten Power." University of Pennsylvania Law Review 134 (1986). Valuable examination of the legal and constitutional issues involved in limited war.

Lofgren, Charles A. "War-Making Under the Constitution: The Original Understanding." Yale Law Journal 81 (1972). Outstanding examination of the Constitutional Convention and constitutional governance of the war power.

Robinson, James A. Congress and Foreign Policy Making: A Study in Legislative Influence and Initiative. Homewood, Ill., 1962. Concise study of foreign policy as Congress influences it.

Schlesinger, Arthur M., Jr. The Imperial Presidency. Boston, 1973. Acclaimed study of the evolution of presidential powers in foreign policy and warmaking.

Scigliano, Robert. The Supreme Court and the Presidency. New York, 1971. Useful catalog and discussion of judicial rulings on presidential power.

Sofaer, Abraham D. War, Foreign Affairs, and Constitutional Power: The Origins. Cambridge, Mass., 1976. Comprehensive analysis of the constitutional origins and early practice of foreign affairs powers.

Sutherland, George S. Constitutional Power and World Affairs. New York, 1919. Early publication of the future Supreme Court Justice's view on the constitutional law of foreign affairs.

Wormuth, Francis D. "The Nixon Theory of the War Power: A Critique." University of California Law Review 60 (1972). Outstanding analysis of the constitutional issues involving presidential warmaking.

Wormuth, Francis D., and Edwin B. Firmage. To Chain the Dog of War: The War Power of Congress in History and Law. Dallas, 1986. Nearly encyclopedic examination of war powers issues.

Wright, Quincy. The Control of American Foreign Relations. New York, 1922. Classic modern analysis of the subject.

See also Congressional Power ; Judiciary Power and Practice ; Presidential Power .

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