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Dualistic Values in the Age of International Legisprudence Jonathan Turley

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Dualistic Values in the Age of International Legisprudence Jonathan Turley Hastings Law Journal Volume 44 | Issue 2 Article 1 1-1993 Dualistic Values in the Age of International Legisprudence Jonathan Turley Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Jonathan Turley, Dualistic Values in the Age of International Legisprudence, 44 Hastings L.J. 185 (1993). Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss2/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Articles Dualistic Values in the Age of International Legisprudence by JONATHAN TURLEY* Table of Contents I. Introduction .............................................. 186 II. The Importance of Being Dualist: Alternative International and Institutional Theories of Dualism ...................... 195 A. Dualism as an Exogenous Value: A Sovereign-Centric (Horizontal) Model ................................. 197 B. Dualism as an Endogenous Value: An Institutional Legitimacy Model ................................... 202 (1) The Countermajoritarian Rationale ................ 204 (2) The Pluralistic Rationale .......................... 209 III. Canons Along the Borderland: Dualism, Statutory Interpretation, and the Constitutional Periphery ............ 210 A. CharmingBetsy and the Presumption in Favor of International Law ................................... 211 B. American Banana and the Presumption Against Extraterritoriality ................................... 218 C. The Last-in-Time Doctrine and the Dualistic Applications of the Borderland Canons .............. 224 * Associate Professor of Law, The National Law Center, George Washington Univer- sity. I thank Professors Thomas Buergenthal, Philip Burbank, Hal Bruff, Anthony D'Amato, William Eskridge, Chip Lupu, Jonathan Macey, Roger Noll, and Stephen Saltzburg for their comments on earlier drafts of this Article. Responsibility for the theories advanced by this Article, however, rests with the author. I also thank the law and economics faculty of the Public Choice Society and the Economic Science Association for giving me the opportunity to present this Article for comments and criticism. I would also like to thank Sarah Adams, John Hemann, Gail Leopold, and Elizabeth Newsom for research assistance on earlier drafts of this Article. Finally, I thank George Washington University's National Law Center for a generous grant to research and write this Article. [1851 HASTINGS LAW JOURNAL [Vol. 44 D. The Political Question Doctrine and the Evolution of Institutional Legitimacy ............................. 232 IV. Proceduralism and International Rent-Seeking in a Representative Democracy ................................. 239 A. Rent-Seeking in the Legislative Branch ............... 243 B. Rent-Seeking in the Executive Branch ............... 245 C. Sum m ary ........................................... 259 V. The Decanonization of Charming Betsy ..................... 262 VI. Conclusion ................................................ 270 I. Introduction Ever since this country was founded, lawyers and legislators in the United States have feared the gradual loss of our national jurisprudence to an international law of nations. Judicial suspicion of extrinsic legal sources has resulted in a sharp conceptual division between national (or municipal) law and the law of nations (or international law). Viewed as separate and distinct, these two legal systems are treated as related but independent parts of a "dualistic" system in which municipal law is gen- erally superior to international law in domestic cases.1 The dualistic preference for municipal sources stems from a strong belief in legislative supremacy and thus naturally suits a Madisonian system that values de- liberative and pluralistic decisionmaking. 2 In a Madisonian democracy, legislation is ideally the culmination of an open, deliberative process. This process is designed to force compro- mise among otherwise disparate factional groups. Whether viewed from a normative 3 or an economic4 perspective, the passage and interpretation 1. Under dualism, municipal law is superior to an international law when the national legislature has not legitimated or incorporated the international law as a domestic source. See generally Louis Henkin, The Constitutionand United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853, 864 (1987) [hereinafter Henkin, United States Sovereignty]; Harold Hongju Koh, TransnationalPublic Law Litigation, 100 YALE L.J. 2347, 2349 (1991); Ralph G. Steinhardt, The Role of InternationalLaw as a Canon of Domestic Statutory Construction, 43 VAND. L. REV. 1103, 1106 (1990). 2. The reference to legislative supremacy is not meant to exclude possible dualistic pref- erences for judge-made common law. Although this Article focuses on conflicts between ex- trinsic legal sources and domestic legislation, there may be a strong dualistic basis for favoring municipal common law over some forms of international law. See infra text accompanying notes 399-400. 3. In developing a theory of legislation, most traditional legal scholars advocated "legal process" theories of legislation-theories that drew heavily from the Madisonian model of representative government. See, e.g., HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (tentative ed. 1958). In the seminal 1950s work that gave birth to the legal process school of statutory interpretation, Professors Henry Hart and Albert Sacks attempted to reconcile the realities of January 1993] INTERNATIONAL LEGISPRUDENCE of legislation lies at the very heart of the representative democracy. The collective good is protected by institutional checks and balances, such as the bicameral system and the executive veto, that structure the enact- ment of domestic legislation. Before legislation becomes law, this deli- cate balance works to check both legislative opportunism and special interests.5 The strength of this system lies in its unflinching commitment to the participatory democratic process, a commitment most often en- forced by the courts.6 When viewed in this context, it is easy to see why international law has traditionally held a precarious position in United States jurisprudence. International law is a system of treaties, agree- ments, and customs created in large part outside this representative sys- tem, untested by the pluralistic forces that drive the legislative and executive branches. The use of international sources introduces new judicial interpretation with the Madisonian model. They accepted that much legislation is in fact sponsored by special interest groups, but argued that when certain procedural safeguards are followed, such group involvement does not skew the public purpose outcome. See Jonathan Turley, TransnationalDiscrimination and the Economics of ExtraterritorialRegula- tion, 70 B.U. L. REv. 339, 351-52 (1990) [hereinafter Turley, TransnationalDiscrimination]. The test for all legislation, therefore, was "whether it is the product of a sound process of enactment." HART & SACKS, supra at 715. 4. Discarding traditional normative theories of legislation, public choice theorists apply microeconomic analysis to the legislative process, incorporating contemporary theories of mar- ket exchange. Under this theory, legislation is no longer viewed as some public-regarding compromise; rather, it is analyzed as a simple commodity. There is a market for legislation and, as in any other market, "legislative protection flows to those groups that derive the great- est value from it, regardless of the overall social welfare." Richard A. Posner, Economics, Politics,and the Reading of Statutes and the Constitution,49 U. CHI. L. R v. 263, 265 (1982). Just as there is a "market equilibrium" point for the supply and demand of commodities, public choice views legislative outcomes as the equilibrium of private political power. Adopt- ing or rejecting a legislative measure is a factor of simple market exchange. Legislators are no longer seen as willing vehicles of societal goals; instead, they are egoistic, rational utility maxi- mizers. DENNIS C. MUELLER, PUBLIC CHOICE 1 (1979) (describing this societal view as "[t]he basic behavioral postulate of public choice, as for economics"). 5. See THE FEDERALIST No. 70, at 426-27 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The differences of opinion, and the jarrings of parties in [Congress] ... often promote deliberation and circumspection, and serve to check excesses in the majority."). 6. The Supreme Court has repeatedly interceded when it perceived a circumvention of legislative procedures. These procedures were designed in part to reduce the impact of faction- alism. See generally Harold H. Bruff, Legislative Formality, Administrative Rationality, 63 TEx. L. REv. 207, 218-22 (1984) (describing procedural checks on factionalism and how legis- lative veto can frustrate them); Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REv. 1689 (1984) [hereinafter Sunstein, Naked Preferences] (arguing that the structure of government set up by the Constitution, as well as much of constitutional jurispru- dence, reflects a purpose to root out discriminatory or redistributive legislation
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