Constitutional Diplomacy

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Princeton University Press, Jul 29, 1991 - Political Science - 353 pages

Challenging those who accept or advocate executive supremacy in American foreign-policy making, Constitutional Diplomacy proposes that we abandon the supine roles often assigned our legislative and judicial branches in that field. This book, by the former Legal Counsel to the Senate Foreign Relations Committee, is the first comprehensive analysis of foreign policy and constitutionalism to appear in over fifteen years. In the interval since the last major work on this theme was published, the War Powers Resolution has ignited a heated controversy, several major treaties have aroused passionate disagreement over the Senate's role, intelligence abuses have been revealed and remedial legislation debated, and the Iran-Contra affair has highlighted anew the extent of disagreement over first principles. Exploring the implications of these and earlier foreign policy disputes, Michael Glennon maintains that the objectives of diplomacy cannot be successfully pursued by discarding constitutional interests. Glennon probes in detail the important foreign-policy responsibilities given to Congress by the Constitution and the duty given to the courts of resolving disputes between Congress and the President concerning the power to make foreign policy. He reviews the scope of the prime tools of diplomacy, the war power and the treaty power, and examines the concept of national security. Throughout the work he considers the intricate weave of two legal systems: American constitutional principles and the international law norms that are part of the U.S. domestic legal system.

 

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Contents

Congress vs the President
3
The Steel Seizure Case
8
United States v CurtissWright
18
The SeparationofPowers Doctrine in ForeignAffairs Disputes
35
A Constitutional Oakland?
36
Analysis of the Courts Methodology
42
A Framework for Decision Making
52
The War Power
71
Warmaking Treaties
192
Constitutionality
194
Text and Legislative History
205
Conclusion
222
International Law as Our Law
229
Presidential Power to Violate Customary International Law
232
Judicial Authority in the Face of Congressional Silence
248
Functional Capabilities and Constitutional Responsibilities
270

The War Powers Resolution
87
The Treaty Power
123
Conditioning Senate Consent to Treaties
124
Treaty Interpretation
134
Treaty Termination
145
Full Senate Review of the Treaty Process
161
Conclusion
163
Presidential Policy and Executive Agreements
164
Executive Agreements
177
Conclusion
190
Conclusion
281
National Security Congressional Oversight and Judicial Review
283
Aggressive Congressional Oversight
285
The Role of the Courts
313
Conclusion
325
Lowry v Reagan
329
Use of Force Act
331
General Index
339
Index of Cases
349
Copyright

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