The Supreme Court’s 1936 decision in United States v. Curtiss-Wright Export Corp. upheld the validity of a joint resolution (equivalent to a statute) authorizing the President, by proclamation, to make illegal the selling of arms to combatants in a conflict between Bolivia and Paraguay. Justice Sutherland’s opinion for the Court framed the issue by assuming, for the sake of argument, that the congressional delegation of authority would be invalid if it only involved internal affairs, and then asking whether the foreign relations context made a difference. His answer was that it made all the difference, for two main reasons. First, the context was one of concurrent presidential authority over external affairs, in which the President enjoys special powers to act as “sole organ of the federal government in foreign relations.” Second, the government as a whole possessed the relevant powers as inherent concomitants of external sovereignty. These points both implied that the standards of valid delegation were more capacious than in domestic affairs.
Curtiss-Wright is familiar, I hope, to every well-trained American lawyer and beyond; it must appear on any short-list of cases about presidential power, delegation, and the sovereignty of the United States. It is however usually discussed substantively, from the standpoint of its holdings and arguments about the subjects it touches upon. I want to say a few words about it from the standpoint of method: what sort of opinion is Curtiss-Wright? Is it originalist, resting on the original meaning of constitutional text? (We are reliably informed, after all, that originalism has long been “our law.”) Is it living-constitutionalist? Something else?
Our constitutional debates are usually framed nowadays around this choice between originalism and living constitutionalism, but neither description really rings true as to Curtiss-Wright. First, Curtiss-Wright is hardly an originalist decision; indeed it stands as a direct and rather flagrant affront to originalism, and to the positivism of which originalism is a species. Curtiss-Wright says squarely that the sovereignty of the United States, and the foreign relations powers that flow from sovereignty, were not created by the written Constitution of 1789, but arose even before the enactment of the Constitution, through translatio imperii — by transfer of sovereignty from the British Crown according to pre-existing general principles of international law, the ius gentium. The Court rejects, emphatically and memorably, the view that the relevant foreign relations powers flow from the adopted written Constitution:
The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs…. Since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source…. As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America…. Rulers come and go; governments end and forms of government change; but sovereignty survives. Apolitical society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. The Union existed before the Constitution [emphasis added].
This approach is historical without being originalist. It draws upon history to prove the chain of legitimate title to sovereignty, for purposes of the ius gentium, but not to interpret the meaning of constitutional provisions. Other passages in Curtiss-Wright can be read, more narrowly, to offer a separate alternative rationale according to which the sovereign foreign relations powers of the United States do stem from the written Constitution, but that point does not undermine anything I will discuss here. In any event, in 2004 the Court cited Curtiss-Wright with approval for the critical proposition: that there are “preconstitutional powers necessarily inherent in any federal government.”
Nor is there any trace, in Justice Sutherland’s opinion, of the view that law is exhausted by the past positive enactments of authorized lawmakers; for the majority, there is far more to “law” than the enacted written text. As the Court put it:
It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality…. [A series of foreign relations powers] none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nationality. This the court recognized, and in each of the cases cited found the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations [emphasis added].
It thus seems unsurprising that the great foreign relations scholar Louis Henkin underscored the anti-originalist character of Curtiss-Wright, noting that the claim that “the new United States government was to have major powers outside the Constitution is not intimated in the Constitution itself, in the records of the Convention, in the Federalist papers, or in contemporary debates.”
The shockingly anti-originalist idea that “[t]he Union existed before the Constitution” may be one of the most consequential sentences ever to appear in the United States Reports — at least for those who overlook the difference between our small-c constitutional order and the written text of the Constitution and its original understanding. Our constitutional order is and always has been a concrete order, a set of real, extra-textual, political institutions, arrangements, and ever-changing norms, unwritten in crucial respects — a concrete order never fully captured by positive law. (There is, by the way, no tension whatsoever between this point and the Court’s observation that every political society features a sovereign “supreme will.” Relative to any other civil authority, the sovereign is ultimately supreme, but it does not follow that the sovereign is unlimited by the law of nations, the natural law, and the divine law. Bodin, who originated or crystallized the theory of absolute civil sovereignty, also thought that the sovereign was bound by at least the natural and divine law.)
Second and conversely, there is nothing particularly living-constitutionalist about the Court’s opinion either, nothing about the progressive unfolding of the law that suggests that the Court’s conclusions would have been different in, say, 1836 rather than 1936. One might, with a slightly different emphasis, describe Curtiss-Wright as an example of common-law constitutionalism, although the Court’s own precedents do not feature centrally in the opinion; they are invoked en passant, late in the opinion, only to confirm a conclusion that has already been reached by reasoning on general principles about the ius gentium. The same is true of a series of statutes that created similar delegations and that the Court took to have, by practice or “liquidation,” put a gloss of custom on the written Constitution.
The best way to understand Curtiss-Wright, in my view—and the reason it is puzzling today—is that it is neither a living-constitutional decision in the current progressive register, nor an originalist decision, but rather a decision that sounds in and draws from the classical legal tradition. That tradition has been largely lost to view but, as I have argued before, American law was steeped in it from the founding era right through the interwar period and beyond. It is really only some time after World War II that the classical tradition is lost to view, under the swelling influence of legal positivism. In this sense originalism, a product of the conservative legal movement’s very particular rhetorical situation in 1970s, is profoundly anachronistic, indeed counter-originalist.
For the classical tradition, the written law does not exhaust the law. Although written positive enactments are undoubtedly part of the law (lex), the law in a broader sense as a body of general principles (ius) includes the ius gentium, the (often) unwritten customary law of nations— even when not adopted into our legal system by positive enactments. Those principles not only inform the interpretation of our written instruments, but operate as sources of law in their own right, vesting sovereignty in the Union before the written Constitution even comes into being. This is why the main discussion in Curtiss-Wright is focused neither on the original public meaning of particular texts, nor on the Court’s precedents as they developed over time, but on general principles of constitutionalism accessible to the reason, at least the well-trained reason of the informed lawyer. Curtiss-Wright reasons, not so much from the formation of the Constitution, as from the formation of the constitutional order; it is interested in the purposes for which our government was formed, but not in the putative “original meaning” of specific texts.
This account has several important implications. Substantively, if the government of the United States is a creature of international law, it is also limited by that law as a domestic constitutional matter in certain respects. For the United States to contravene international law not only violates that law itself on the international plane, but might also violate the domestic constitutional order, at least with respect to questions bearing on war, territorial control and other attributes of sovereignty. Our sovereignty, in other words, would be itself both constituted and regulated by principles of international law, by the ius gentium. That law is both enabling and constraining, simultaneously; it both empowers and controls public authority in our constitutional order. As Henri de Bracton put it, of course in the context of an earlier day, “law makes the King.”
The most important implication, however, is methodological. There is a world that lies beyond our exhausted opposition between progressive living constitutionalism and originalism: the world of the classical legal tradition, drawn from Roman law and the ius commune of Europe and still very much living today. That tradition was, for a century and a half, a central component of our law, which explains how one of the cornerstones of our law of foreign relations and of presidential power is a powerfully, indeed profoundly, counter-originalist decision. Originalism, paradoxically, flattens and even erases the rich legal world of the classical tradition that the founders originally inhabited. Curtiss-Wright, then, is merely one example of the lost classical tradition in American law, erased by originalism’s rewriting of our history, and desperately in need of recovery.
Adrian Vermeule
