Foreign Relations Law and the Purported Shift Away from 'Exceptionalism'

Harvard Law Review Forum, Vol. 128:294

Duke Law School Public Law & Legal Theory Series No. 2015-23

11 Pages Posted: 13 May 2015

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Date Written: May 11, 2015

Abstract

In prior writings, I coined the term “foreign relations exceptionalism” to refer to the view that the federal government’s foreign affairs powers are subject to a different, and generally more relaxed, set of constitutional restraints than those that govern its domestic powers. In a recent article in the Harvard Law Review, The Normalization of Foreign Relations Law, the authors contend that during the past twenty-five years there has been a revolutionary shift away from foreign relations exceptionalism, that this “normalization” trend is likely to continue, and that this development should be welcomed and encouraged. This essay points out various conceptual and methodological limitations with the normalization thesis. In particular, the essay argues that the authors’ definition of foreign relations exceptionalism is problematic because it relies on artificial distinctions in constitutional law; that their account is too exclusively focused on the Supreme Court and does not present a compelling case even on its own terms; and that their lack of an underlying theory of why normalization is occurring weakens their empirical, predictive, and normative claims.

Keywords: foreign relations law, exceptionalism, deference to the executive, federalism, normalization

Suggested Citation

Bradley, Curtis, Foreign Relations Law and the Purported Shift Away from 'Exceptionalism' (May 11, 2015). Harvard Law Review Forum, Vol. 128:294, Duke Law School Public Law & Legal Theory Series No. 2015-23, Available at SSRN: https://ssrn.com/abstract=2604946

Curtis Bradley (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
95
Abstract Views
779
Rank
493,626
PlumX Metrics