Judge Rosemary Barkett Final.pdf - Columbia Law School

BARKETT – PIZZA PROOF 8/19/2007 8:32:54 PM
LOUIS HENKIN AND THE EDUCATION OF
THE FEDERAL JUDICIARY
Judge Rosemary Barkett *
I am immensely honored to be asked to speak here today
about Louis Henkin. I do so not only on my own behalf, but on the
behalf of practically the entire judiciary of this country. I realize that
sounds a bit extravagant and you might think that my love and
admiration of Lou Henkin, which is well known, might lead me into
some boastful excess.
But the unvarnished truth of the matter is that Lou Henkin’s
influence on the education of the judges in this country, and therefore
the law, is really immeasurable. Justice Ginsburg stole my thunder
when she noted that he has been cited in hundreds of federal and
state opinions. They cite to Louis Henkin’s scholarship, including his
articles, his books, and amicus briefs. From as early as 1957 when an
opinion referenced his “excellent and cogently reasoned discussion” in
the Columbia Law Review 1 to this past month in 2006 when the D.C.
Circuit yet again cited Lou’s book Foreign Affairs and the United
States Constitution, he has been quoted by Supreme Court Justices
and cited by almost all federal courts of appeal. 2 He has been referred
to in a case as “the preeminent constitutional scholar in the area [of
international law].” 3
And opinion writers have fought over which of them
Professor Henkin would agree with. My favorite case in this regard is
that of Edwards v. Carter in 1978, the case in which 60 members of
* United States Circuit Judge for the Eleventh Circuit United States
Court of Appeals.
1. Power Auth. of N.Y. v. Fed. Power Comm’n, 247 F.2d 538, 553 n.24 (D.C.
Cir. 1957).
2. See Natural Res. Def. Council v. EPA, 464 F.3d 1, 10 (D.C. Cir. 2006)
(citing Louis Henkin, Foreign Affairs and the United States Constitution 219–20
(2d ed. 1996)).
3. Matter of Extradition of McMullen, 989 F.2d 603, 615 (2d Cir. 1993).

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472 COLUMBIA HUMAN RIGHTS LAW REVIEW [38:471
the House of Representatives challenged President Carter’s use of
the treaty power to convey to the Republic of Panama the Panama
Canal. 4 The Congressmen attempted to argue that Article IV of the
Constitution gives Congress exclusive power to convey to foreign
nations any property, such as the Panama Canal, owned by the
United States. In the majority the Court said, “[the] thesis seems to
be that the President and Senate cannot exercise under the treaty
power any power granted to Congress. We agree with Professor
Henkin that such a narrow view of the treaty power would, by
outlawing treaties on matters as to which Congress could legislate
domestically, virtually wipe out the treaty power” (quoting Henkin’s
Foreign Affairs and the Constitution). 5
The dissenter in that case, however, was also a reader of
Louis Henkin’s work, and after quoting from another Henkin passage
therefrom said,
[t]he foregoing quotation does not support the
assertion that Henkin’s treatise agrees with the
conclusion of the Per Curiam opinion . . . The Per
Curiam opinion states at note 4 that among the
authorities agreeing with its position is Prof. Henkin.
. . . This opinion does not contend that the Executive
lacks the power to make a treaty disposing of
property but rather that such a treaty requires an act
of Congress to become effective. Henkin does not
address this question directly, and his comments are
not inconsistent with this position. See Henkin,
supra, at 149. 6
The dissent continues its extremely lengthy opinion positing
that Professor Henkin in reality agrees with the dissent and not with
the majority. And it goes on, and I quote, “[t]he passage to which the
majority refers as indicating that Prof. Henkin is in accord with its
position begins with the statement,” 7 which it then quotes and then
continues,
The Per Curiam opinion grasps at the word
“unilaterally” in one sentence and asserts therefrom
that Henkin in the next sentence is also speaking
4. Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978).
5. Id. at 1057 n.4 (per curiam) (citing Louis Henkin, Foreign Affairs and
the Constitution 149 (1965).
6. Id. at 1069 n.10 (MacKinnon, J., dissenting).
7. Id.

JUDGE ROSEMARY BARKETT FINAL.DOC 8/19/2007 8:32:54 PM
2007] EDUCATION OF THE FEDERAL JUDICIARY 473
solely of the President’s power to act “unilaterally.”
Such construction cannot be supported. Henkin, in
the first sentence, is referring to the unilateral action
by the President that transcended what “he might do
by treaty or other international agreement.” However
in the very next sentence, which is the critical
sentence, Henkin shifts to deal with the President’s
“entire foreign affairs purposes.” 8
And the dissent then proceeds to quote and analyze several
more passages from Henkin’s work, concluding that “[i]t is absurd to
suggest that this statement by Henkin [supports the majority
position].” 9
The dissent, believe it or not, continues to quote more
passages and then it says, “Thus, Henkin is not ‘in agreement with
(the Per Curiam opinion).’ Not that Henkin is authoritative or
binding, [but] he is a highly respected professor.” 10
The majority, believe it or not, is not going to be content to
fail to have the last word and responds: “We note that Professor
Henkin’s treatise leaves no doubt but that he is in agreement with
our position.” 11 The passage is quoted again in dissent, and the
dissent goes on, again, to argue that it is their position with which
Professor Henkin would agree. 12
But even more than by his written words, Lou Henkin has
been the ultimate teacher, who, through his immense knowledge and
understanding of both constitutional law and international law and
his passion for human rights has gently and compellingly imparted
that knowledge and understanding to an entire country’s judiciary.
He has taught international law to over 300 judges who have
attended the Aspen Institute’s Justice and Society program, and
more specifically, the international law seminars at Wye. 13
8. Id. at 1069–70.
9. Id. at 1070.
10. Id.
11. Id. at 1057 n.4 (per curiam) (emphasis added).
12. Id. at 1070 (MacKinnon, J., dissenting).
13. Michael Posner, President, Human Rights First, Address at Aspen Ideas
Festival: What Can I Do? (July 9, 2006), available at
http://www.aspeninstitute.org/atf/cf/%7BDEB6F227-659B-4EC8-8F84-
8DF23CA704F5%7D/Transcript_What_Can_I_Do.pdf (The Aspen Institute is
headquartered in Washington, D.C., and has a campus in Aspen, Colo., and on
the Wye River on Maryland’s Eastern Shore.).

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These programs have included as students at least four
Supreme Court justices, including Justice Breyer, and hundreds of
judges from every single federal circuit and from the highest courts of
many of our states.
We’re talking about, over the years: some fifteen judges from
the First Circuit, fourty-four judges from the Second, over thirty
judges from the Third, twelve judges from the Fourth, sixteen judges
from the Fifth, over seventeen judges from the Sixth, twenty judges
from the Seventh, ten judges from the Eighth, fourty-one judges from
the Ninth, twelve judges from the Tenth, fifteen judges from the
Eleventh, fifteen from the D.C. Circuit, and thirty-five to fourty state
court judges—many from the highest courts of their state. The list
includes most, if not all, of the most illustrious members of the
judiciary throughout this entire country.
When the program first started (and I was one of the very
first participants in that program), many judges, however, attended
with their skepticism in high gear. International law, in our minds,
was like having to learn a foreign language, and one which we did
not think would be of much use to us. It was a difficult subject for
most judges because it was so remote at that time from our everyday
experiences. Lou understood that and was able to take us from what
we knew to a whole new area of knowledge that we had not known.
To use the vernacular, we were “blown away” by his complete
command of the U.S. Constitution and thereby, in his modest but
clear and authoritarian way, he was able to walk us through the
comparable doctrines of international law and the documents of
international human rights.
As a reviewer of one of his books noted, “Professor Henkin is
one of the very few law professors who has divided their academic
careers between constitutional law and international law and he has
written brilliantly in both fields . . . [H]e is at home in history and
political science as well as in law. Above all, Henkin is a true scholar,
not a polemicist or a promoter.” 14 The judges were quick to recognize
that. As another reviewer said, “his marriage of erudition and
persuasion is irresistible.” 15
14. Andreas F. Lowenfeld, Book Review, Foreign Affairs and the
Constitution, 87 Harv. L. Rev. 494, 498 (1973).
15. Anne-Marie Burley, Book Review, Constitutionalism, Democracy and
Foreign Affairs, 86 Am. J. Int’l L. 415, 416 (1992).

JUDGE ROSEMARY BARKETT FINAL.DOC 8/19/2007 8:32:54 PM
2007] EDUCATION OF THE FEDERAL JUDICIARY 475
Lou’s wonderful combination of human decency, gentleness,
wit, and brilliant ability to convey information at an enormously high
level led hundreds of judges to say that he opened their eyes to a
world that they did not know existed, and prepared them for the
world in which international law now plays such a big part.
In addition to quoting or citing Lou directly, countless judges
have used the material from the Wye seminar to reinforce their
domestic rulings. And countless judges have been better prepared to
resolve the international law questions that are now being put before
them in greater and greater number.
With due respect to all of the wonderful faculty participants
at the Wye judicial seminars throughout the years, I believe that its
success is due in a major way to the patient nurturing of Lou Henkin
at the very beginning of its existence. His courtly and quizzical way
of questioning a position made judicial students willing to question
their own assumptions and engendered in them a desire to learn
what he could teach. The reputation of the seminar grew in great
part because of Lou’s reputation for being incredibly knowledgeable,
thoughtful, wise, gentle, and committed. His sessions were conducted
with grace, and wit, and gentleness, and you left them wanting to
emulate him. You left his presence and his teachings wanting to
emulate his thoughtfulness, thoroughness, and deep commitment to
the protection of the dignity of every individual.
In short, I really do not think that I exaggerate when I say
that I cannot think of another human being who has had greater—or
even close to equal—influence on an entire branch of government.
The judges of this country know that they owe a great debt to
Louis Henkin. And for a more educated judiciary, the people of this
country are likewise in his debt.
I thank Dean Schizer and Columbia Law School for
permitting me to publicly acknowledge that debt and publicly express
it.