Publication Date
12-1998
Journal
New York University Law Review
Abstract
Article II, Section 2 of the Constitution provides that the President shall have the power to make treaties by and with the consent of two-thirds of tie Senate. Yet, most of the international agreements into which the United States has entered over the last fifty years, including NAFTA and the WTO Agreement, have been concluded as congressional-executive agreements-a procedure by which the President submits an agreement to both houses of Congress for simple majority approvaL In an article in the Harvard Law Review entitled "Is NAFTA Constitutional?," Professors Bruce Ackerman and David Golove attempted to provide this practice with constitutionalfoundations. Pointing to the decisive shift away from traditional isolationism and toward internationalism at the close of World War II, they argued the resulting "constitutional moment" transformed the meaning of the Treaty Clause and legitimized the congressional-executive agreement. Professors Ackerman and Golove also advanced a narrower argument for which it was unnecessary to rely on the full thrust of Professor Ackerman's theory of higher lawmaking. They claimed tha4 notwithstanding contrary practice during the nation's first 150 years, the constitutional text is indeterminate and can plausibly be construed to support the congressional-executive agreement.
In a subsequent article; Professor Laurence Tribe sharply criticized this latter aspect of Professors Ackerman and Golove's artie, charging that their claim that die text is indeterminate reflects a dangerous "free-formn" approach to constitutional interpretation in which arguments are selectively chosen to read preordained conclusions without concern for fidelity to the text. In order to preserve interpretive objectivity and the ability of the Constitution to constrain government, Professor Tribe urged that constitutional interpretation, at least as to "architectral" provisions, should be based strictly on the original meaning of the text. He then sought to illustrate the proper application of his own "topological" model of textual interpretation by closely focusing on the Treaty Clause Developing an elaborate set of textual arguments, he claimed that there is only one plausible construction of the text: The Treaty Clause is exclusive and renders the congressional-executive agreement unconstitutional.
In this Article, Professor Golove responds to Professor Tribe on the latter's own terms by offering a serious textual and structural analysis of the Treaty Clause that supports its nonexclusivity. Professor Golove shows that the constitutional text is in fact indeterminate and that, contrary to Professor Tribe's claims, textualism cannot render a singularly persuasive construction of the Treaty Clause. By analyzing each of Professor Tribe's arguments, Professor Golove shows that equally strong formal arguments can be constructed in favor of the nonexclusive reading. Professor Golove thus seeks to demonstrate by illustration that textualism is just as open to manipulation as the interpretive methodologies that Professor Tribe decries and, given the pervasive ambiguities in the text, is generally incapable of yielding unique, objective resolutions to constitutional disputes, even those over concrete provisions of the text. Only by systematically ignoring these equally plausible formalist counterarguments was Professor Tribe able to reach his favored reading of the Treaty Clause. In the final analysis, Professor Tribe's article reflects free-formism in its most paradoxical form: free-form formalism.
Volume
73
Issue
6
First Page
1791
Last Page
1942
Publisher
NYU School of Law
Keywords
Constitutional Law, Legal Analysis and Writing, Government (General), State and Local Government Law
Disciplines
Constitutional Law | Law | State and Local Government Law
Recommended Citation
David M. Golove,
Against Free-Form Formalism,
73
N.Y.U. L. Rev.
1791
(1998).
https://larc.cardozo.yu.edu/faculty-articles/1003
