Constitutionalism, Democracy, and Foreign Affairs

In 1989, the people of the United States celebrated the bicentennial of their country's Constitution. At the same time Americans observed the continuing miasma of the Iran-Contra affair. Although we celebrated the longevity of the Constitution, the Iran-Contra affair can be seen as a result of the problems brought about by the fact that the framers of the Constitution envisioned a republic very much different from the United States today. Over the centuries each branch of the Federal government has aggrandized its consitutional powers, breeding constitutional controversy, instability, and occasional crisis. In "Consitutionalism, Democracy, And Foreign Affairs" Louis Henkin addresses a highly controversial yet neglected aspect of Consitutional jurisprudence -the governance of foreign affairs. Henkins examines whether our constitutional blueprint for the conduct of foreign affairs is appropriate to the democracy we have become, or whether it might be desirable to consider constitutional change.

Looking first at the wrangling between Congress and the President for foreign affairs jurisdiction, including questions related to the controversial War Powers Act, Henkin then moves to the issue of the role of courts in foreign affairs of a republic that has become a democracy, and issues of individual rights arising out of foreign relations. He finds that in the conduct of foreign affairs we are particularly susceptible to the claims of "efficiency" -that we repose full faith in "the experts" for fear of appearing divided before the world. In the process, Henkin argues, we carelessly sacrifice the individual rights that the framers of the Constitution had hoped to insure. In conclusion, Henkin argues that it is ultimately the responsibility of the United States Congress to provide through new laws and institutions the Consitutional "rudder" that will "reaffirm our ancestral commitment to constitutionalism appropriate to our democracy, in a nuclear world in the Twenty-first century, the Third Century of the Constitution."