When Constitutional Rules May No Longer Be Law: A Response to Goldsmith and Glennon

In his April 16 post on the similarities between American constitutional and international laws regulating the use of war powers—an analysis similar to but narrower than his 2009 law review article written with Daryl Levinson—Jack Goldsmith suggests that these rules may no longer be law. Michael Glennon’s May 1 post challenging Goldsmith’s comparative analysis and its premises inspired me to share a few thoughts on the topic of when constitutional and international rules may no longer be fairly called “law.” In short, I agree with Goldsmith’s overall approach but subtly disagree with his methodology as it pertains to what I will call the international and constitutional rules on the use of force. Let me first summarize the Goldsmith-Glennon debate, offer two important critiques, and propose a different approach. Using Hart’s views on international law, and Locke’s liberal political principles, I explain why coequal constitutional entities must engage in an iterative process of the recognition and coercive enforcement of some constitutional rules to clarify their content and maintain their status as law.

Goldsmith’s Analysis and Glennon’s Response

Goldsmith’s post asked whether the U.N. Charter, particularly its rules regarding the use of armed force, is still law. He summed up his concerns as follows:

The frequent violations of the U.N. Charter, its uncertain impact on the practice of states, the ease with which humanitarian intervention exception arguments are made, and the lack of courts or an executive agency “above” the treaty to interpret and enforce it, lead many—especially outsiders to the debate—to wonder whether the document really functions as law. Such doubts are only enhanced by the frequent claim that some humanitarian interventions are “illegal but legitimate.”

Goldsmith then posited that similar concerns about war powers, or constitutional rules on the use of force, arise under the Constitution because of a number of factors, including disagreements on original constitutional meaning, prior practice of different branches of government, and alleged mechanisms of subtle constitutional change. He observed that “the uncertainties about the meaning and efficacy of the constitutional law of war powers are similar to uncertainties about the international law of war powers.”

Goldsmith also added:

And just as with international law, there is no authoritative institution in the United States to settle the matter. In part this is because courts have abandoned the field with doctrines like political question and standing. But the real reason is more fundamental: As Levinson and I argue, courts cannot authoritatively resolve such constitutional law questions.

In his response, Glennon asserted that Goldsmith’s comparative analysis of international and constitutional law suffers from fatal flaws. Among them, the concept that international law flows from a system in which the default position is the “freedom principle,” or the assumption that states may do anything not prohibited by international law. Conversely, Glennon claimed:

The foundational presumption of constitutional law is the opposite. Absent constitutional authorization, government action is thought to be prohibited. The president, Congress, and the courts all must point to a specific constitutional provision that authorizes what they want to do. They exercise only delegated power, the source of that power being the people.

Glennon does not clarify how these principles apply to the Constitution’s separation of war powers. Congress and the president can point to different constitutional provisions and assert different constitutional norms on the use of force. The fact that our Constitution enumerates limited powers says little about how to resolve conflicting views of constitutional rules regulating those powers.

According to Glennon, the upshot of these “inverted power flows, amplified by disparate background conditions” is that disputes are resolved differently in part because the mix of “coercion and consent” is different. His gist seems to be that the Constitution is, for a variety of reasons, accepted as “law” much more than the U.N. Charter is or ever has been (or perhaps should be). In support of this claim, Glennon posits that we might judge whether the document’s regulation of the use of force is truly law in light of its inefficacy. Furthermore, Glennon observes:

But if states intended to make the Charter’s use-of-force rules universally binding, they would have put in place a global incentive structure to induce compliance with those rules. They have not. States distrust concentrations of state power. They see the risks posed by a universal system that provides no escape from lawfully centralized coercion as greater than the risks of a system that lacks centralized coercive enforcement mechanisms—mechanisms of the sort that exist within the U.S. constitutional system.

Glennon’s observations on the status of the Charter as law are worth noting. In my view, however, Glennon’s comparative claims contain questionable views the Charter as well as of the competency of the Constitution and its institutions.

Two Critiques of the Debate

Glennon advances two questionable views that weaken his critique. First, Glennon assumes that the Charter is simply another source of international law. He does not appear to recognize the Charter’s “constitutional” nature or the fact that the Charter derives its authority in the same way that the Constitution does: by consent. Just as the Constitution resulted from the consent of the people, the Charter and its rules regulating the use of force resulted from the consent of states. As I have explained elsewhere, Lockean liberal political principles, especially the idea that consent creates law, appear to underlie both the U.S. and international political-legal systems. By adopting the Constitution, “the people” sacrificed aspects of their liberty to advance their collective wellbeing and security. By adopting the U.N. Charter, states did exactly the same thing. Analyzing rules based in the Charter and their enforcement mechanisms like other decentralized international norms (or enforcement mechanisms) ignores the fundamental nature of the Charter, or at least what it purports to be.

A second and related weakness is that, contrary to Glennon’s (and Goldsmith’s) claim, the Charter and the Constitution both provide centralized, but clearly imperfect, mechanisms for their enforcement. The Constitution creates coequal branches of government intended to provide checks and balances on the exercise of their respective powers. This includes a judiciary vested with the power to recognize and clarify valid laws, and to decide their application to specific cases and controversies. Both Congress and the president make and provide for the enforcement of those laws as well as of judicial decisions. Mutual respect and cooperation among the branches of government are necessary to make, adjudicate and enforce any law.

The Charter empowers only one institution, the Security Council, to authoritatively recognize use-of-force rules and adjudicate violations. Under Article 39, the council has the sole power to determine “any threat to the peace, breach of the peace, or act of aggression” and to “decide what measures shall be taken” in response. This includes the power to enforce International Court of Justice decisions or those of any other dispute resolution body or mechanism when necessary to preserve the peace (see Articles 33–38, particularly Articles 36 and 37). Permissible measures include non-forcible or forcible coercion (Articles 40–42). Decisions of the Security Council become legal obligations for all states (Article 25). Under Articles 44–50, the Council was even to have at its disposal an international “police force” composed of the armed forces of member states to coerce compliance with its decisions. The fact that states never implemented this aspect of the Charter provides limited support for the view that the Council does not possess complete or perfect centralized power to coerce compliance with its decisions. However, the armed forces of the five permanent Council members would likely be sufficient should the Council truly wish to do so.

Moreover, Article 103, similar to the supremacy clause of the Constitution, declares that Charter obligations—meaning the document’s text and any obligations created by Security Council decisions—are supreme to all other international legal obligations. Moreover, as under the Constitution, mutual respect and cooperation among the members of the council is essential to the full and proper exercise of its powers.

A Positivist Diagnosis of the Problem

So how does all of this affect our view of the Charter and Constitution as law? I think is helpful to begin by considering H.L.A. Hart’s general concept of law. Hart countered legal theorist John Austin’s view of positive law—sovereign commands backed by threats—with a more nuanced view of what Hart called positivist law, which involved “a union of primary and secondary rules.” Primary rules refer to conduct-regulating rules. Secondary rules are those that involve recognition, change and adjudication of primary rules. Effective legal systems have well-developed secondary rules.

The Constitution and Charter provide both primary and secondary rules. They contain rules regulating behavior, including the authority to use force, although they differ in focus. The Constitution states how our government may exercise the power to use force but not the circumstances that permit it. The Charter clarifies the circumstances that permit states to use force. Both documents also contain secondary rules and establish institutions that recognize and adjudicate these primary rules.

When assigning power to a central governing entity, however, both the Charter and Constitution contain internal checks and balances to address concerns about centralized power. The Constitution creates three coequal branches of government, each with a role in creating and recognizing primary rules, as well as changing, adjudicating, and coercing compliance with them when necessary. Although the Charter does not divide powers among institutions, it vests authority to exercise all of these powers in the Security Council, particularly the five permanent members. Each permanent member possesses the power to prevent the council from exercising its authority in any given case.

The main obstacles to clarifying, adjudicating, and coercing compliance with the Charter and U.S. constitutional rules on the use of force are the internal checks and balances in both systems. This is where the analysis must focus—and where I believe Glennon and Goldsmith misstep—at least in this specific context. Glennon appears to assume that the Constitution has centralized enforcement mechanisms that effectively in enforce all constitutional norms, and that the international rules regulating the use of force have no such mechanisms. Neither is completely true. Goldsmith and Levinson equate the interaction between coequal branches of government under the Constitution to the decentralized interaction of states in the making and enforcing of international law generally. Although I agree with that general approach, I believe that the proper comparison is between the coequal branches of our government and the permanent members of the Security Council. These are the coequal entities with power to recognize, adjudicate and coerce compliance with the relevant rules on the use of force.

When entities possess independent and equally-authoritative (even if not substantively equal) powers to recognize and enforce a rule purporting to be law, Hart’s views on international law are instructive. In theory, all states are equal and possess power to make law and enforce their rights. Given the decentralized nature of the international system, there are significant questions about the formation and substance of primary and secondary rules of international law, as both Glennon and Hart note. Austin claimed that the absence of a global sovereign means that international law is at best “positive morality.” Hart countered that the mutual observation and acceptance of international rules among equal and sovereign states, as well as reciprocal coercion and enforcement with respect to those rules, are sufficient to make those rules "law" even without an effective international legal system.

Hart’s view seems defensible; at least to the extent that there is relative unanimity among relevant coequal actors about the substance of a rule and of a right (or power) to enforce it. This is likely why the West initially theorized an international law of “civilized nations” where such relative unanimity might be found. It is also likely why Grotius stated that the law of nations would differ in different parts of the world. Without iterative mutual recognition of a rule, and without coercion with respect to violations of it, unanimity of understanding is difficult to gauge, and the exact substance of a rule as well as its status as law can become doubtful. In other words, sometimes coequal entities must—with some regularity—reinforce and clarify the substance of a rule to maintain the rule’s status as law. When they fail to do so, the content of the rule or its status as law becomes uncertain; the rule may lose its legal force, known as desuetude.

The failure of the relevant coequal actors to recognize, adjudicate, and enforce international and constitutional rules on the use of force calls both the substance of those rules and their status as law into question. Under the Constitution, neither Congress nor the courts are currently using their respective powers to confirm and enforce constitutional rules regulating the war powers. As Goldsmith notes, the courts have largely ceded their authority to confirm and enforce relevant constitutional rules through generous application of the political question and standing (and, I would add, official immunity) doctrines. Congress is not using its powers to censure, impeach, or deny funding to presidents who engage in unconstitutional uses of force. One can fairly argue that our coequal branches of government do not currently engage in sufficient acts of mutual acceptance and recognition or reciprocal coercion and enforcement to call constitutional rules on the use of force “law.” The problem is similar under the Charter. The five permanent members of the Security Council often exercise their independent and equal power to prevent the adjudication of unlawful uses of force or the imposition of coercive sanctions. Their failure to observe, adjudicate and enforce of those rules brings both their substance and their status as law into doubt.

The Potentially Limited Role of Courts

This brings me to Goldsmith and Levison’s related claim that the “courts cannot authoritatively resolve such constitutional law questions.” It is true that U.S. federal courts do not possess absolute power to settle the meaning of the Constitution. Congress and the president must accept what the courts say as authoritative. The president must “faithfully execute” the court’s articulation and interpretation of the laws, and Congress must act to enforce the court’s view if a president fails to abide by them. However, this is true of any judicial decision. Litigants must voluntarily comply with judgements or the executive must coerce compliance with those judgments pursuant to powers and rules established by Congress. For example, President Eisenhower, pursuant to general congressional authorization, sent federal armed forces to Arkansas to coerce compliance with the Supreme Court’s decision in Brown v. Board of Education. At any point, however, a coequal entity might deem a court’s judgment invalid or unjust and refuse to enforce it. If the coequal branches do not acknowledge judicial power to “say what the law is” or how that law applies in a given case, then the courts cannot authoritatively resolve any question of law.

If we refuse to accept judicial supremacy, or at least unique judicial competency, to settle Constitutional norms, then the rule of law depends upon all coequal branches of our government agreeing on the substance of specific constitutional (or other) norms. Each must use its respective powers to recognize and enforce a norm. Only an iterative process of recognition and coercion will settle the precise content of a norm and maintain its status as law. Even then, if the public does not broadly accept the authority of government institutions on a question of law and voluntarily comply, then the status of those rules as law might become equally doubtful. No government possesses the means to universally detect rule violations by, and coerce compliance of, the entire populace. Just as the Security Council cannot perfectly enforce its decisions (and the “legal obligations” they create) without the voluntary compliance and cooperation of states, a national government cannot perfectly enforce its laws without the voluntary cooperation of its people.

Conclusion: A Locke-Hart View of the Concept of Law

Ultimately, then, the true basis of any “law,” whether constitutional or international, appears to be relatively universal acceptance of—or consent to—a rule within a relevant community. Such consent is expressed not only through voluntary compliance with a rule, but also through its persistent recognition as authoritative coupled with consistent efforts to adjudicate violations and coerce compliance. Adjudication and coercion involve anything from claims for satisfaction or compensation to public condemnation or punishment. When these various expressions of consent are absent, we rightfully question whether a rule is properly termed “law.” The constitutional and international rules for the use of force currently suffer from this condition. The good news is that this condition need not be terminal. The situation can be remedied if the coequal branches of the U.S. government, and the permanent members of the Security Council, decide that it is everyone’s best interests to revive and confirm these rules.