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Law and the Shaping of American Foreign Policy: from the Gilded Age to the New Era

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Law and the Shaping of American Foreign Policy: from the Gilded Age to the New Era LAW AND THE SHAPING OF AMERICAN FOREIGN POLICY: FROM THE GILDED AGE TO THE NEW ERA JONATHAN ZASLOFF* What is the proper relationship between law and American foreign policy? Can or should law and legal institutions shape international relations? Although Ameri- cans vigorously debate these questions today, there was a time when they assumed a tight connection between law and foreign affairs. Lawyers dominated American foreign policy at the turn of the twentieth century; every Secretary of State from 1889 to 1945 was a lawyer, and the Republican Party's chief foreign policy thinker, Elihu Root, was also its foremost lawyer. In this Article, Professor Jonathan Zasloff argues that this relationship between law and foreign policy had real conse- quences for the shape of American diplomacy during that period. Professor Zasloff contends that classical legal ideology-the prevailing ideological frame- work among elite lawyers in the late nineteenth and early twentieth centuries-pro- foundly influenced the direction of American foreign policy. Classical legal ideology taught that law does not derive its effectiveness from the coercive state but ratherfrom popular custom and social norms. Moreover, it held that law could be effective without state coercion because it stood as a neutral, apolitical source of order that satisfied widely varying social groups. These two beliefs implied that international law could form a basis for a legally regulated world order and that traditional balance-of-power methods were either unnecessary or harmful. As policymakers debated the shape of the post-World War I world order, classical legal ideology told lawyer-statesmen like Root that they did not need to make strate- gic commitments to ensure global stability. Lawyers imbued with classical legal ideology concentrated on internationallaw and institutions and neglected realpoli- tik foreign policy. In doing so, they unwittingly contributed to global catastrophe. * Acting Professor of Law, University of California at Los Angeles School of Law. B.A., 1987, Yale University; J.D., 1993, Yale University; Ph.D., 2002, Harvard University. For comments and suggestions, I would like to thank Rick Abel, Ann Carlson, Willy Forbath, Laura G6mez, Joel Handler, Laura Kalman, Jerry Kang, Bill Klein, Gillian Lester, Sandy Levinson, Tim Malloy, Grant Nelson, Randy Peerenboom, Kal Raustiala, Bill Rubenstein, Larry Sager, Gary Schwartz, David Sklansky, Clyde Spillenger, Kirk Stark, Richard Steinberg, and of course Katherine Trisolini. The staff of the Hugh and Hazel Darling Law Library at UCLA, especially the incomparable and indefatigable Laura Cadra, provided superb research assistance. The tireless editors of the New York University Law Review--especially Harlan Cohen-saved me from many errors and im- proved the piece. I also thank the UCLA School of Law Dean's Fund and the UCLA Academic Senate for research funding. In order to publish a piece drawing largely from primary historical documents, the New York University Law Review has departed from its standard procedures for citation and substance checking. Due to the limitations of a student-produced journal, editors were unable to access many of the nonduplicable primary sources located exclusively in special collections of various libraries and historical societies. When possible, editors relied on typewritten quotations transcribed by the author. 239 Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:239 I INTRODUCTION: LEGAL CONSCIOUSNESS AND AMERICAN FOREIGN POLICY Does being a lawyer make any difference when approaching po- litical or moral questions? This question carries interest for the sociol- ogy of professions, but it has particular salience for historians as well. Scholars as diverse as Robert Gordon,1 Michael Les Benedict,2 Duncan Kennedy, 3 Thomas Grey,4 Grant Gilmore, 5 William Wiecek,6 Howard Gillman,7 and Morton Horwitz8 have argued that "classical legal consciousness" or "classical orthodoxy" dominated the work of lawyers, scholars, and judges from the Gilded Age through the 1920s. Legal realism, so the story goes, challenged and eventually vanquished orthodox thought during the '20s and '30s, culminating most spectacu- larly in the famous "switch in time" of West Coast Hotel Co. v. Parrish9 and the transformation of private law doctrine in tort, con- tract, and property. But for several decades, orthodoxy served as the crucial paradigm underlying legal thought and decisions. Our knowledge of how orthodoxy actually worked in practice, however, remains primitive. Kennedy and Wiecek have identified classical premises and reasoning in certain U.S. Supreme Court opin- ions, 10 Daniel Ernst has found orthodox thinking in the work of law- yers who represented small businesses and fought union boycotts," and Barry Cushman recently has reinterpreted Commerce Clause and due process jurisprudence to argue for a new account of the New Deal 1 See Robert W. Gordon, "The Ideal and the Actual in the Law": Fantasies and Prac- tices of New York City Lawyers, 1870-1910 [hereinafter Gordon, Ideal and Actual], in The New High Priests: Lawyers in Post-Civil War America 51 (Gerard W. Gawalt ed., 1984); Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920 [hereinafter Gordon, Legal Thought], in Professions and Professional Ideolo- gies in America 70 (Gerald L. Geison ed., 1983). 2 See Michael Les Benedict, Laissez-Faire and Liberty: A Re-evaluation of the Mean- ing and Origins of Laissez-Faire Constitutionalism, 3 L. & Hist. Rev. 293 (1985). 3 See Duncan Kennedy, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 Res. L. & Soc. 3 (1980). 4 See Thomas C. Grey, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983). 5 See Grant Gilmore, The Ages of American Law 41-98 (1977). 6 See William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideol- ogy in America, 1886-1937 (1998). 7 See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993). 8 See Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Cri- sis of Legal Orthodoxy (1992). 9 300 U.S. 379 (1937). 10 See generally Kennedy, supra note 3; Wiecek, supra note 6. 11 See Daniel R. Ernst, Lawyers Against Labor: From Individual Rights to Corporate Liberalism (1995). Imaged with the Permission of N.Y.U. School of Law April 2003] LAW AND THE SHAPING OF AMERICAN FOREIGN POLICY 241 constitutional revolution. 12 In general, though, while we know some- thing about what classical legal culture was, we know comparatively little about what it did. How did classical legal culture affect lawyers' perceptions? Did classical legal culture influence how lawyers viewed legal problems or even how they decided that something was a legal problem in the first place? Did it alter lawyers' views of public issues or change their priorities? I believe that I have discovered a partial answer to these ques- tions in a fairly unlikely place: American foreign policy during the period of the classical orthodox ascendancy. Lawyers dominated U.S. foreign policy during this period and beyond-for example, from 1889 to 1945, every Secretary of State was a lawyer. 13 I argue that the be- liefs, biases, and perceptions underlying classical legal ideology car- ried implications for foreign affairs, and these implications powerfully influenced the conduct and outlook of American foreign relations 1 4 during the first three decades of the twentieth century. Tracing these intellectual links yields more than antiquarianism, for the foreign policy of the period embodies the greatest disaster in American diplomatic history. During the 1920s, or the "New Era," American leaders claimed that they rejected isolationism and favored extensive engagement with Europe and the rest of the world. They did so, however, in idiosyncratic and seemingly contradictory ways, advocating involvement in European affairs while insisting on remain- ing aloof from European "politics," placing enormous faith in interna- tional legal institutions, rejecting realpolitik, and contending that deep and abiding conflicts of interests and values could be ameliorated. The U.S. prescription fundamentally misdiagnosed the problem. After the First World War, international order required active Ameri- can political and strategic involvement: The rest of the great powers 12 See generally Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998). 13 An interesting contrast is that during the same period only one British Foreign Sec- retary had a legal background. Cf. David Butler & Gareth Butler, Twentieth-Century Brit- ish Political Facts, 1900-2000, at 55-56, 77-83 (8th ed. 2000). I refer in this case to Sir John Simon, Foreign Secretary from 1931 to 1935. I do not count Lord Reading, who served as Foreign Secretary for only three months in a caretaker government in 1931. 14 Readers interested in the connection between law and foreign policy also can ex- amine Francis Anthony Boyle, Foundations of World Order: The Legalist Approach to International Relations, 1898-1922 (1999). Although Boyle's work deals with some of the same issues explored in this Article, his approach is quite different. Generally speaking, he does not put his discussion of early-twentieth-century foreign policy legalism in the context of the history of American foreign policy or the history of American legal thought. In- stead, he focuses on various international legal agreements and regimes rather than exam- ining foreign policy's ideological roots. Although I consulted Boyle's book while preparing this Article, our works address very different questions. Imaged with the Permission of N.Y.U. School of Law NEW YORK UNIVERSITY LAW REVIEW [Vol. 78:239 looked to the United States for constructive leadership to stabilize Europe. That leadership, however, never materialized, leaving a weak and divided continent unable to grapple with financial crisis and the 15 ensuing rise of fascism.
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