Curtis Bradley (University of Chicago Law School) has posted Extradition in the Early Republic: International Law and Constitutional Authority (60 pages) on SSRN. Here is the abstract:
This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article further documents, the constitutional law of extradition had a relational interaction with international law, in that the views of U.S. interpreters concerning the nation’s international law duties were relevant to their views of constitutional authority, and vice versa. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement. In this respect, extradition parallels the development of certain other unenumerated foreign affairs powers, including most notably the authority over immigration. Finally, the Article situates extradition within the broader field of foreign relations law, illuminating its ties to doctrinal developments such as treaty non-self-execution, foreign affairs federalism, and sovereignty-based legislative power—developments that still resonate today.
A methodological thought inspired by this excellent paper: Assume it's true, as the abstract declares and the article argues, that the post-ratification approach to extradition "emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions." Consistent with his broader approach to constitutional interpretation, Professor Bradley clearly thinks these post-ratification developments should be influential in modern interpretation. But my question is, isn't the opposite true for originalists? That is, if post-ratification political actors in fact embraced intuition and consequentialist considerations rather than text and original understanding, isn't that a reason for originalists to sharply discount post-ratification practice? Post-ratification practice is relevant to original meaning only if post-ratification actors were trying to discern and be guided by original meaning. If they weren't, why do we, as originalist interpreters, care what they did?
Posted at 6:23 AM