After devoting the first half of his book to the President's power to launch wars on his own say-so, Yoo turns to his second fixation. This is his pet idea, shared by other conservative scholars, that treaties, even after being ratified by the Senate, are not the supreme law of the land. Here again, he projects current-day conservative policy preferences, including an exaggerated abhorrence of international agreements, back into the minds of the Framers. The authors and ratifiers of the Constitution, Yoo explains, agreed that "no treaty could have direct legislative effect without the participation of Congress." And he again bolsters his case by twisting the plain sense of words. For example, he cites Madison's claim that the House's "approbation and co-operation may often be necessary in carrying treaties into full effect" to prove that "any significant treaty would require an implementing statute that must come from Congress" (my emphasis). Similarly, when one of the Framers states unambiguously that treaties "have the force of law," Yoo tells us that this did not mean what naïve readers might think it did. The Framer simply wanted to establish that treaties possess the vanishingly weak, almost metaphorical, "force of law" characteristic of agreements "between sovereign nations under international law."

It follows, then, that treaties, domestically, are legal nullities. But if this was common knowledge in the founding period, why did some anti-Federalists worry, as Yoo amply documents, that "the treaty-power, because of the Supremacy Clause, had become tantamount to the power to legislate." The ratification-period debates about the treaty power--particularly the frequently expressed apprehension that the treaty power shared by the President and the Senate would not only undermine residual state power but would also marginalize the House's lawmaking authority--would make no sense if everyone had agreed, as Yoo ardently claims they did, that treaties had zero domestic validity without additional legislation by Congress. Yoo writes that his deep skepticism about international agreements stems from his concern for Congress's constitutional role. It is a curious claim, coming from someone who expresses scant concern that Congress's constitutional role might be undermined by secretive presidential decision-making. Why in the world is the treaty power harder to reconcile with "the standards of democracy and accountability established by our constitutional system" than unilateral commander-in-chief powers?

Yoo's mutually contradictory postures and beliefs are as striking as his exaggerations. At times he pretends to be the quintessential fair-and-balanced moderate. At other times, he poses as a paradigm-shattering revolutionary. Yoo's understanding of the implications of 9/11 is similarly contradictory--and telling. On the one hand, the terrorist attacks changed everything. On the other hand, we need to adhere strictly to the original intent of our eighteenth-century Framers. But how can Yoo's national-security paradigm be both venerably perennial and shatteringly new?

The liberal plan to involve multiple veto actors in the formulation of foreign policy and especially to share war powers between the executive and the legislature, he tells us, "might have been more appropriate at the end of the Cold War, when conventional warfare between nation-states remained the chief focus of concern and few threats seemed to challenge American national security." But the liberal bias against the massive deployment of American troops overseas, an aftereffect of the Vietnam War, was made obsolete by 9/11. Our reflexive impulse today, at first glimmer of danger, must be toward all-out military attack on enemies far and wide, not toward peaceful diplomacy and negotiation. Since the emergence of the terrorist threat, "it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force." And he summarizes his position as follows: "These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system" (my emphasis).

In such passages, Yoo's justification for presidentialism seems to be wholly contextual, contingent and contemporary. But if that is true, why has he labored so tirelessly to argue that the Framers themselves intended presidentialism to be the basic system for conducting American foreign policy? Why has he argued, against a mountain of contrary evidence, that Madison, Hamilton and the others wished to make unilateral presidential warmaking "as easy as lying," and that they were already and miraculously imbued with a post-9/11 mindset?

The "pestilential breath of faction," warns The Federalist Papers, "may poison the foundations of justice." John Yoo, as is well known, belongs to the Federalist Society, an association that Madison and Hamilton would perhaps have classified as a mischievous domestic faction. Its members are conservative Republican lawyers who claim to be committed to recovering the original understanding of the Constitution. In 2000 they watched their preferred candidate accede to the presidency. They were naturally eager to exploit this window of opportunity and were therefore driven by the logic of incumbency to argue for an expansion of executive authority. Because of their commitment to "originalism," however, they were also compelled to cloak their momentary ambitions as pious adherence to the intent of the Framers. This is the immediate intellectual context in which to make sense of The Powers of War and Peace.

More substantively, the book's unstable mixture of contextualism and originalism stems from Yoo's decision to yoke two distinct rhetorical ploys for winning public support for presidential power: fearmongering and ancestor worship. By highlighting the unprecedented dangers of the present, he encourages people to entrust their own and their families' lives to a savior-President. By claiming that the Framers themselves would have been perfectly happy with unchecked presidential power, he encourages people to believe in the deep fidelity of a constitutionally unleashed President to an ideal America that was always meant to be. Although it is not particularly coherent, this fusion has a certain emotional appeal.

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