In his recent article, The Splintering of American Public Law, Boston College Law School Assistant Professor Marco Basile traces the historical roots of the modern divide between constitutional and international law and situates contemporary debates about judicial power in a much longer arc of legal thought. Drawing on nineteenth-century legal culture, Basile challenges familiar stories about interpretation, courts, and sovereignty, while asking what public law can still accomplish today. In this interview, Professor Basile discusses the origins of his project, the political conditions that reshaped public law after the Civil War, and the questions he hopes the next generation of scholars will confront.
Q: Before the late nineteenth century, constitutional law and the law of nations were understood as branches of a broader public law. What did public law aim to do in that earlier period?
Basile: Public law was law that sought to govern the sovereign state, as opposed to other forms of law that governed persons. The core problem was how to govern the sovereign state by law absent any undisputed authority above the state that could enforce compliance. And that problem had internal and external dimensions. Internally, how do you get a sovereign state to follow law in its relations to the people who live there? Externally, how do you get a sovereign state to follow law in its relations with other sovereign states? Constitutional law is about the first question, and international law is about the second one. But they were understood as related questions.
Q: Your recent University of Chicago Law Review article argues that American public law “splintered” after the Civil War. What first led you to see constitutional law and international law as once belonging to a shared tradition rather than separate fields?
Basile: Historians often say that our work is like traveling in a foreign country, and I’ve spent years immersed in different ways of thinking about law through my primary sources. So, I was clued into a more integrated approach to public law from my travels into the past. But I got interested in this project amid the recent wave of crises in constitutional law, when there has been heightened attention to basic questions of whether and how constitutional law can work given there’s no one who can enforce it against the sovereign state.
Similar questions are also central to thinking about international law. And these similarities between constitutional and international law used to be more explicit, in ways that I think are salutary. There is a small literature, including a fascinating recent book by Daryl Levinson, exploring the shared structural features of contemporary constitutional and international law. This literature recognizes that a more integrated understanding of public law has deeper historical roots, but no one had yet tried to trace when and how that tradition splintered and what that splintering means for public law today.
Q: A central part of your work focuses on the period after the Civil War, when courts treated constitutional law and international law quite differently. Why did the Supreme Court become more assertive in enforcing constitutional limits in the South while remaining deferential in matters tied to western expansion?
Basile: There were a lot of factors that my article examines. My focus, though, is on how different political contexts led to judicial empowerment with respect to Reconstruction of the South but not with respect to western expansion. As to the South, Republicans became increasingly reliant on courts, and expanded their jurisdiction accordingly, as political strategies to reconstruct the South failed and political support for Reconstruction among Northern moderates cooled. (There is an irony here because these newly empowered courts would later play a role in gutting Reconstruction.) By contrast, as to the West, political strategies and coalitions to implement western expansion proved more resilient, so policymakers did not turn to courts to help insure and entrench their positions. It’s very telling, for example, that while the military proved unable to reconstruct the South’s political system and ultimately withdrew, the military remained in the West for decades.
Q: You argue that both judicial supremacy and judicial deference played roles in enabling regressive outcomes after the Civil War. How does that complicate modern debates that frame judicial power as either the problem or the solution?
Basile: There is a lot of new, important work on the rise of judicial supremacy over constitutional law in the context of the gutting of Reconstruction in the South. My article explores how that development occurred in tandem with the rise of judicial deference as to international law in the context of western expansion. That is, just as federal courts were becoming more aggressive in policing the constitutionality of Reconstruction statutes, they were becoming more hands-off with respect to scrutinizing the conformity of statutes with treaties related to the West. And both developments played a role, as you say, in regressive outcomes after the Civil War.
Courts’ more aggressive role as to constitutional law and the South undermined Reconstruction legislation and Congress’s powers to enforce civil rights. And courts’ more deferential role as to international law and the West contributed to the abrogation of treaties with Native nations, the forfeiture of Mexicans’ land, and the race-based exclusion and removal of Chinese immigrants. By putting both stories together, my article is underscoring that courts were not the problem, the underlying politics were. And while courts may also not have been the solution in that historical moment, we should be cautious about throwing out the baby with the bathwater.
Q: You note that early American public law depended heavily on political actors, not just courts, to give it meaning and force. Are there lessons in that earlier “legal-political” model for today’s debates about the role of courts versus Congress?
Basile: That’s right, public law was understood as both legal and political. “Political” here doesn’t mean that public law was understood to reduce merely to the outcome of interest or policy competition in the way that, say, a cynic might brush off a recent Supreme Court opinion by saying “it’s all politics.” Rather, the idea is that there used to be a more explicit understanding that the interpretation and enforcement of both constitutional and international law depended not only on legal institutions, such as courts, but also on political actors and structures. So, for instance, the division and balance of power were important structural mechanisms for both constitutional law (think of the separation of powers) and international law (think of the balance of power among competing alliances).
The lesson for today is that both constitutional and international law still depend on political actors and structures in addition to legal institutions. The rise of judicial supremacy over constitutional law has obscured this point. Yet constitutional law is still largely political, just like international law. Courts won’t resolve most constitutional questions, the answers they do give might change as judges are replaced, and courts cannot enforce their decisions. If we want to figure out big questions such as whether and how public law works, we shouldn’t lose sight of public law’s legal-political nature, and we should be open to how international thought and constitutional thought can inform and learn from each other.
Q: Today, constitutional “tradition” plays an increasingly central role in Supreme Court decisions. What does your historical work suggest we may be missing when we look for tradition using modern legal categories that didn’t yet exist?
Basile: When we go looking for constitutional traditions, we should be mindful that the broader public law context was different in the past. An example I give in the article concerns the question of whether the Constitution protects foreigners beyond U.S. jurisdiction. Arguably, there isn’t much historical evidence from early U.S. history that constitutional rights were understood to do so. But that scarcity of evidence might be explained by the fact that international law was understood to provide that protection instead. And legal protections under constitutional and international law weren’t distinguished as sharply as they are today. We can thus state the historical tradition differently. One might say, at a narrow level of generality, that there was no tradition of constitutional protection for foreigners outside US jurisdiction. But at a higher level of generality, there was a robust tradition of public law limits on federal power abroad.
Q: Your scholarship bridges constitutional law, international law, and legal history. How does your background as both a historian and a former litigator shape the kinds of questions you ask about public law?
Basile: It drives me to connect the present and the past. There’s a great line from another historian that I quote in my article: “Like funerals, history-writing is for the living.” I agree. As a former litigator and clerk, I’m drawn to big questions that matter for public law today. But my methods are historical, which means two things for me. First, I think of my work as detour (or, I suppose, foreign travel). A lot of my work is trying to show how people thought differently about questions in the past, which reminds us that our own answers are not the only or forever ways of thinking about the issues. Second, I also tend to think of my work as detective work. I try to explain how it is that we arrived at the particular answers we have today, which usually reveals fortuitous paths as well as alternative paths not taken.
Q: One striking theme in your work is contingency, the idea that public law did not have to develop the way it did. Why is it important for lawyers and students to understand that today’s legal categories were shaped by historical choices rather than inevitability?
Basile: It’s liberating. Once one recognizes that an idea or doctrine or system is not inevitable or necessary, then one can recognize the possibility for change.
Q: You teach civil procedure and conflict of laws, subjects that can feel highly technical to students. How does your historical perspective change the way you approach those doctrinal courses in the classroom?
Basile: I try to resist letting my own historical interests overpower my teaching goals. My focus is on teaching the doctrinal frameworks and empowering students to use those frameworks in service of the issues that they or their future clients care about. I also want my students to evaluate those doctrinal frameworks critically based on the context in which the frameworks developed and their own sense of the values at stake, and here is where I do introduce some history in the classroom. But history probably most affects my teaching simply by motivating why I think civil procedure and conflict of laws are so important. The rule of law depends on procedural regularity and harmonization across jurisdictions, and history bears that out over and over again. So, I show up to class highly motivated by the lessons of history, and hopefully that helps make the subjects come across as less dry.
Q: Looking ahead, what questions about public law, domestic or international, do you think are most urgent for the next generation of scholars to grapple with?
Basile: Both domestically and internationally, we are confronting the biggest questions that can be asked about public law. Is it possible to govern sovereign states by law? How does it work? And what can we do to sustain it?