December 2007 Newsletter

International & Comparative Law: Ingrid Brunk Wuerth

Most U.S. citizens view the Constitution as the glue that holds American democracy together. Ingrid Brunk Wuerth , who joined Vanderbilt’s international law faculty this fall, sees a complex document that can be interpreted in different ways to effect different outcomes relating to international security issues.

Professor Wuerth is applying her expertise in comparative law, foreign relations law, and international law to several sensitive constitutional questions, including which branch of government has the power to make decisions in times of war, and who decides the treatment of detainees, like those at Guantanamo Bay in Cuba.

Professor Wuerth believes that the Sept. 11 terrorist attacks and related issues not only raised new questions of domestic foreign relations law, but they also begun to change the field of comparative constitutional law. “A lot of the research in comparative constitutional law has been very rights-focused,” she says. “Since 9/11, many of the most interesting constitutional questions are ones dealing with separation of powers, executive authority and emergency powers, and these areas tend to be under explored in the comparative context.”

Among the “emergency powers” Professor Wuerth is researching is the commander-in-chief clause. “There’s always a tension between executive power, legislative power and judicial power in times of war,” she says. “The commander-in-chief clause is a famously difficult area of constitutional interpretation, partly because there is so little case law, specifically on what the commander-in-chief clause means.”

Professor Wuerth argues that international law can serve as an important tool in interpreting the Constitution, including the commander-in-chief clause, in part because many questions of war-related international law were given to Congress, not the president. “It runs totally counter to what we think of,” she says. “We think the president should be the one making all of the decisions that have important international ramifications; he should be the one to interpret treaties of war and so on. But I argue that the text of the Constitution, at the time it was drafted, vested many of those powers with Congress, not the president.”

Professor Wuerth is also examining the power Congress has over ‘captures.’

“The Constitution gives Congress the power to make rules concerning captures on land and water,” she says. “Politicians and critics of the administration have argued that this must give Congress the power to decide how prisoners and detainees are treated.”

However, while the Guantanamo detainees are the most pressing ‘captures’ at issue, Professor Wuerth says, “The framers may not have been talking about people when they wrote this part of the Constitution. At the time, ‘captures’ most often referred to captures of property, enemy cargo and enemy vessels at sea.” She hopes to write a definitive article on the meaning of that clause in the Constitution.

Professor Wuerth joined the Vanderbilt faculty this summer and spent the Fall 2007 semester, in Berlin, Germany, studying comparative constitutional law as a Fulbright scholar at the Free University. She will begin teaching foreign relations law and civil procedure at Vanderbilt in January and is “thrilled” with the courses she’s teaching because “they’re exactly in my area of expertise.” She was a visiting professor at Vanderbilt last spring and taught comparative constitutional law.

- Amy L. Wolf, Vanderbilt Public Affairs