The Splintering of American Public Law

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which White Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve White supremacy, and pave the way for the violent disenfranchisement of newly freed Black men. The Article concludes by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation.

The treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain. This Article focuses on the two most significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than three thousand of these agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms.

In her latest book, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, Professor Alison LaCroix suggests that the period between 1815 and 1861 in the United States has too often been treated as “the flyover country of constitutional history.” She asserts that this time should be the subject of greater consideration because this “period . . . witnessed a transformation in American constitutional law and politics.” Contrary to “the conventional story,” it was a “foundational era of both constitutional crisis and self-conscious creativity.”

The Interbellum Constitution reminds us of the important insights that have helped transform the historiography of the early American Republic, of slavery, and of relations between European settlers and Indigenous Peoples. Historians and other scholars during the latter half of the twentieth century discovered the importance of moving beyond “great man” history to tell a richer and more truthful story about the past. The story LaCroix tells is not entirely unknown, but her signal contribution is to look beyond the “great man,” “great case” perspective on the years after the War of 1812 and before the Civil War. By mining the archive for information, she expands our understanding of the range of ideas about union, federalism, and sovereignty.