Contextual Determinism and Foreign Relations Federalism

No doubt we are today trolling murky waters in matters involving the intersection of the domestic constitutional order and the global system.1 By way of evidence for the proposition, foreign relations law must now be counted among the hottest topics in the legal academy. The top law reviews in recent years have included many contributions in the area; indeed, one might venture that there have been more articles on foreign relations law subjects in the past five years than in the preceding twenty-five. Issues relating to the treaty power, the status of international law in our constitutional order, the role of the courts in resolving foreign relations controversies, and the role of the states on the international scene-all and more have been the subject of heated debate. This interest can't simply be explained in terms of Curtis Bradley, Jack Goldsmith, and others taking advantage of a ripe opportunity for some revisionist scholarship-although their energy in reexamining the canon of foreign relations law is certainly an important part of the story. One must, I think, also attribute the renewed interest in foreign relations law to the possible transformation of the international system and the advent of globalization. Foreign relations law is definitionally concerned with the intersection of the domestic and the international; it cannot be fully comprehended as an endogenous system. Its study must account for the global context to which it relates. And that presents a missing element in foreign relations law scholarship in general, most of which makes only passing reference to recent changes on the world scene. In this respect, recent work on foreign relations federalism proves fairly typical. Much of it at least implicitly presumes the matter to be governed by the standard metrics of constitutional law, ones that consult the international context only incidentally. Thus, Michael Ramsey argues that the states should be afforded a greater role in foreign policymaking as a matter of original constitutional intent.2 Jack Goldsmith alleges a nineteenth and early twentieth-century tradition of such state activity to undermine the legitimacy of what he calls the "modern" rule barring it.3 The constitutional doctrine is argued both ways on its own terms, with Zschernig,4 Barclays Bank5 and now Crosby6 as flashpoints. Much analysis focuses on the respective institutional capacities of the courts and the political branches,7 discussion that tracks similar debates in the domestic constitutional arena. In these treatments, the changed global context is given little more than a nod. Globalization emerges variously as a qualified concession-as something that cannot be ignored but which is at the same time played down as either cliched or exaggerated-or as a sort of joker in the deck, a card that isn't necessary to a winning argument but might add to the margin of persuasion. The nationalists tend to minimize its significance.8 On this battleground they are defenders of the doctrinal status quo; the transformation of international relations poses for them a natural challenge to the established order rather than an element of the defense. The revisionists, by contrast, are of two minds on globalization's significance. On the one hand, to the extent globalization gives cause to reexamine the conventional wisdom, it serves their purposes.9 On the other, they are uncomfortable with the fact of globalization and the deeper challenge it may pose to their restorationist objectives. On the matter of foreign relations federalism, revisionists appear to assume that constitutionally insulating state-level authority from federal control will also insulate it from international constraints.10 Acknowledging the magnitude of globalization threatens that premise. That explains the continued marginalization of global context in recent scholarship. But it doesn't justify it. To take Ed Swaine's yardstick, it is only by reference to that context that we can "know what values lie in the balance. …