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Foreign relations law presents a particularly fertile field in which to explore constitutional dynamics. In sharp contrast to other areas of constitutional law, the courts have stood in the shadows where our interaction with other nations is implicated. Far from emphatically telling us what the law is,1 the courts have said almost nothing about the war, treaty, negotiation, and recognition powers, and the few pronouncements ventured are at such a level of generality as to present no more than alternative and inconsistent basic frameworks for further interpretation. This judicial reticence poses a challenge to the constitutional lawyer: if not in the case reports, then where do we find the law? One must locate the appropriate sources before one can move to resolve matters of substantive controversy in foreign relations law. But locating those sources is not relevant only to that task. The exercise may also suggest nonjudicial generation of constitutional norms even in those areas in which the courts are or have been active.
Two recent treatments of the treaty power by noted constitutional scholars, both appearing in the pages of the Harvard Law Review,2 present a useful platform for investigating constitutional methodologies in foreign relations law and elsewhere. Both examine the constitutional legitimacy of recent trade agreements-the North American Free Trade Agreement (NAFTA) and the Uruguay Round of the General Agreement on Trade and Tariffs, establishing the World Trade Organization (WTO)3-undertaken by the United States not as treaties, which under Article II would require two-thirds consent of the Senate,4 but as executive agreements approved by majority vote in both houses of Congress. The articles reach opposite conclusions, not so much by way of differing interpretations of the same evidence (as might often be the case, for instance, with respect to a more quotidian debate as to the precedential consequence of a decision of the Supreme Court) but rather at the more fundamental level of accepting what evidence is relevant to the question.
On the one hand, Laurence Tribe asserts that because the Constitution itself speaks only of treaties and designates no other method for binding the nation to international commitments, the treaty is the exclusive constitutional form for such agreements. Arguing (at least ostensibly) that the constitutional text alone serves as the source of...