“Government from Reflection and Choice”: Constitutional Essays on War, Foreign Relations, and Federalism

Abstract

Professor Charles Lofgren is one of the best contemporary students of American constitutional history, and especially of the respective powers of the president and Congress in the field of foreign affairs. His new book, which draws its title from Hamilton in the first Federalist paper, includes six of his major articles on these themes published during the last twenty years. It is important to have the articles conveniently available. They belong on the short shelf of thoughtful and disciplined scholarly work in a field notable for passion, polemics, and extravagant disregard of the evidence. Lofgren's craftsmanship is meticulous, but his outlook has two blind spots. The first is jurisprudential: he exaggerates the role of "original intent" in the growth of law, the subject of at least four of his chapters. The second is a defect of formation: he seems to have little familiarity with international law, a weakness which particularly affects Chapter 5, his well-known essay on United States v. Curtiss-Wright Export Corporation. This review will focus mainly on these two aspects of Lofgren's work.