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11/24/2015

Richard Primus on Justice Scalia and English History
Michael Ramsey

Richard Primus has a followup post at Balkinization that's no better than the previous one critiqued here by Mike Rappaport (I agree with that critique in full).

In The Perils of Originalism: Notes from Zivotofsky II, Professor Primus explains that "it is important to point out, on a regular basis, how flagrantly awful even the most respected and prominent originalists can be at rendering their historical evidence."  His example is Justice Scalia's opening paragraph in dissent in Zivotofsky v. Kerry, which states: 

Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating fleets and armies.” 1 W. Blackstone, Commentaries *253, *257, *262. The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.

Why is this paragraph so "flagrantly awful"?  Primus continues:

... [T]he picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe.  By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy. Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs.  Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire.  George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving.  George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament.  To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy. 

Primus is right about all this, of course, as I'm sure Justice Scalia (and anyone who's taken even a casual look at eighteenth-century English history, or just seen The Madness of King George) knows.  But Scalia in Zivotofsky isn't claiming to describe "eighteenth-century British government" as it existed in practice.  He's describing (as he says) "the law of England" in its formal sense, as set forth in Blackstone, the most widely read legal authority in founding-era America.  Scalia's point is not that the American framers rejected the actual practice in England (however they may have understood it); it's that in framing the formal allocation of powers in the U.S. Constitution they rejected the formal concentration of foreign affairs powers that Blackstone described.

And of course Scalia is absolutely correct about this.  Indeed, Primus concedes later in his post:

Technically, in the eighteenth century and also today, foreign-affairs powers in the United Kingdom’s system were and are classified as matters of “royal prerogative.”  Blackstone used that term at one of the pages that Scalia’s opinion cites.

Well, yes.  That's exactly what Scalia says.  But, Primus complains, "everyone from Blackstone to John Adams to Louis XIV knew that in the British system Parliament had a lot of actual power over foreign affairs."  Of course it did.  But Scalia isn't talking about actual power.  Nothing in Scalia's paragraph denies that parliament had "a lot of actual power over foreign affairs."  It simply isn't relevant to his point, which is that the American framers rejected Blackstone's description (and the formal law), not that the American framers rejected the actual practice.

So what exactly is Primus' problem with Scalia's paragraph?  He doesn't deny that most foreign affairs powers were "technically" (meaning formally) classified as matters of royal prerogative.  He doesn't deny that Blackstone described them in this way.  He doesn't deny that the American framers rejected the concentration of foreign affairs powers that Blackstone described.  Ultimately he agrees with everything Scalia says.  At most, his complaint must be that Scalia should have had an additional sentence saying something to the effect of "Even in England parliament had much more power over foreign affairs in actual practice than indicated by the formal allocation of authority Blackstone described."  Perhaps that would have made the paragraph more complete (especially if it were designed for a law review article rather than a dissent).  But I have a hard time seeing how anyone could call its omission "flagrantly awful," or indeed even thinking that it mattered much.

Note too that the actual British practice doesn't undermine Scalia's central point that in the U.S. Constitution's original meaning foreign affairs power is divided.  So in a post lamenting originalism's inability to understand the Constitution, Professor Primus points to a paragraph in which the originalist author correctly describes the Constitution.

To be clear, I think Justice Scalia's opinion in Zivotofsky is ultimately unpersuasive.  And I think the opening paragraph that Primus quotes overstates in one important respect: the British monarch did not have complete control over foreign affairs, even under the formal system as Blackstone described it, because parliament had control over expenditures.  But again I'm struck by how some very smart people let their distaste for originalism lead them to play wholly implausible games of "gotcha."  (See also here).