Constitutionalism, Democracy, and Foreign Affairs

Louis Henkin in Constitutionalism, Democracy, and Foreign Affairs writes about the thorny issue of the governance of foreign affairs, something that Henkin says has been neglected in constitutional jurisprudence. Henkin approaches his analysis as a way of defining issues facing constitutional scholars and courts required to adjudicate matters regarding the governance of foreign policy. Henkin sees the overall issue as one which is in what he calls the "twilight zone" of constitutional jurisprudence, plagued both by concerns raised by what the Constitution did not address and by what the Constitution did address, with the latter capable of creating as many thorny issues as the former. Henkin is critical of certain elements of the debate, but he is not one calling for a massive change or for throwing out the old organs of government because he knows that they have been effective and that they remain remarkably vigorous, though at certain times we have merely muddled through when a clearer conception would have provided clearer guidelines. Clearer guidelines are what Henkin would prefer, and he elucidates constitutional uncertainties, constitutional friction, and constitutional dissatisfaction in order to assess the existing constitutional organs and to determine if new organs would be more efficacious.

In the Introduction, Henkin discusses the nature of his inquiry and relates it to some general ideas about democracy and constitutionalism. The key to his concern about ho

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ly in the stronger position in foreign affairs. Henkin, however, feels that when Presidents resist congressional control on constitutional grounds, they are seeking support for their position that is not in the Constitution and not in the intent of the framers. Congress was intended to have a role and should exercise that role when deemed necessary. Chapter Two looks to the specific foreign policy objective and process of making treaties. Henkin says that most recent constitutional controversy in this area has involved "war powers" and other powers of Congress and the President that fall within a constitutional "twilight zone" where their respective powers are uncertain or may be concurrent. Constitutional issues of treaty making do not fall within this zone, but history has clearly reshaped what the framers intended in the area of treaty-making. Henkin looks first to the text of the Constitution, which as with much of that document may seem clear and simple but in reality is not. The provision for the "advice and consent" of the Senate, for instance, does not define advice or consent, and this has thrown the matter open to wide interpretation. For that matter, it is not clear what the meaning of "treaty" is, raising the i

Category: Government - C