Monday, July 04, 2005

The Founding Fathers as Internationalists

Just in time for Independence Day, Northwestern Law Prof John McGinnis has posted this neat little article arguing that the Founders were free traders much in the same vein that the U.S. government is today. In particular, he notes that the Continental Congress approved a "Model Treaty" that would have provided "national treatment" to treaty partners, e.g. that nationals of foreign countries would receive the same treatment in the U.S. for taxes and duties as U.S. nationals received in their countries. In other words, according to Prof. McGinnis, the Founders were free trading internationalists.

This is an interesting point, and provides yet another angle to a question that has recently percolated in the courts and the academy: Were the Founders liberal internationalists? Did they (in addition to free trade) also believe in respect for and compliance with international law as the primary mechanism of conducting foreign relations? Would they have believed that judges should, whenever possible, cite to international law and opinion in the development of constitutional law?

For many modern internationalist scholars, the answer to this question is a "yes." Now, few internationalists are also originalists, but it is a trope of internationalist foreign relations scholarship to cite to the Founders anyway, if only to embarrass their originalist/formalist critics.

My own view is that the Founders were probably liberal internationalists in many ways, but their commitment to such internationalism is only mildly reflected in the actual text of the Constitution. Here, it might be useful to draw on Justice Scalia's distinction between "original intent" and "original meaning." We might speculate about what the Founders would want to do with today's issues, but the proper legal analysis should focus on what the Founders meant in the use of particular words in drafting the Constitution.

Which brings me back, in a very roundabout way, to the Declaration's famous internationalist language recommending "decent respect for the opinions of mankind." (discussed previously here). I think this is more than admirable as a matter of political principle, but I don't think this language should matter a whole lot for constitutional interpretation unless someone can show me evidence that this phrase is somewhere in the Constitution in the guise of some other text.

Anyway, just some fodder for conversation today as you munch on your burgers and hot dogs at the pool or beach (and as long as you don't mind coming off a bit geeky). Happy July Fourth!