Against Free-Form Formalism

A few years ago, Professor Bruce Ackerman and I wrote an article defending the constitutionality of the so-called congressional-executive agreement -- under which Congress approves international agreements, such as NAFTA and the WTO, by simple majority votes in both Houses. Under the procedure specified in Article II, Section 2, in contrast, treaties must be submitted to the Senate for two-thirds advice and consent. We argued that the decisive shift from traditional isolationism to internationalism during the World War II years provided the grounding in popular sovereignty for a transformation in the meaning of the Treaty Clause. Contrary to conventional wisdom, practice during the first 150 years supported only an exclusive reading of the text; the non-exclusive reading became accepted only after 1945. We also claimed that the text itself is indeterminate. In response, Professor Laurence Tribe sharply criticized this latter claim. According to Professor Tribe, our conclusion could only be reached by application of dangerous "free-form" methods of constitutional interpretation, which undermine the ability of the text to constrain government. In his view, constitutional interpretation, at least as to "architectural" provisions, should be based strictly on the original meaning of the text. To illustrate his own "topological" method of interpretation, he developed an elaborate set of textual arguments in support of the claim that there is only one plausible interpretation of the text -- the Treaty Clause is exclusive and rules out the congressional-executive agreement. I now respond to Professor Tribe's surprising turn toward textualism and seek to demonstrate that the text itself cannot render a singularly persuasive construction of the Treaty Clause. The text is, as Professor Ackerman and I contended, ultimately indeterminate. I analyze each of Professor Tribe's elaborate textual arguments to demonstrate by illustration that textualism is just as open to manipulation as the interpretive methodologies he criticizes and, given the pervasive ambiguities in the text, is generally incapable of yielding unique objective resolutions to constitutional disputes. Only by systematically ignoring equally plausible formalist counter-arguments was Professor Tribe able to reach his favored reading of the Treaty Clause. In my view, Professor Tribe's article reflects free-formism in its most paradoxical form: free-form formalism.