A traditional view in legal scholarship holds that the U.S. Constitution assigns the president exclusive power to carry on official diplomatic communications with foreign governments. But in fact, Congress and its members routinely engage in communications of their own. Congress, for example, receives heads of state and maintains official contacts with foreign parliaments. And individual members of the House and Senate frequently travel overseas on congressional delegations ("CODELs") to confer with foreign leaders, investigate problems that arise, promote the interests of the United States and constituents, and even represent the president. Moreover, many of these activities have occurred ever since the Founding. Together, they comprise an understudied field of legislative diplomacy. This Article has two purposes: The first is to use State Department cables from WikiLeaks, a recent compilation of public reports, and original historical sources to provide a uniquely detailed, descriptive account of legislative diplomacy. The second is to develop theories about the practice's constitutionality. Text, original meaning, and customary practice suggest that the separation of diplomacy powers is more complicated than commonly assumed and that those powers do not belong exclusively to the president. The analysis undermines the "sole organ" metaphor, serves as a counterpoint to the widely held view that authority over foreign affairs belongs overwhelmingly to the executive, and carries practical implications for the execution of U.S. foreign relations.
Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that reflect the perspectives of multiple institutional actors. This new understanding illuminates how both doctrines relate to the Court's earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court's work outside the confines of rights-based judicial doctrines by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.