The Constitutional Origins of the President's Foreign Affairs Power

Abstract

The question of the executive’s authority over foreign affairs has been debated constantly over the life of the Constitution. Rather than try to discern the answer to this question from only the well-known Framers, this scholarly endeavor proposes to unlock the original understanding of the Constitution to the “citizens, polemicists, and convention delegates who participated in one way or another in ratification.” Recent scholarship in the nature of the executive’s foreign affair power has suffered from a lesser degree of scrutiny than other constitutional subjects. Few scholars have addressed the original source of authority and legitimacy of the Constitution—its ratification—as a means of determining whether the modern presidency continues to abuse or respect the powers the Constitution has invested in it. Those that have looked to the historical context of the Constitution’s ratification and believe that public sentiment toward the executive was more characterized by fear rather than want of energy have reached their conclusion because of select sampling from an extraordinary era in American constitutionalism. The research will be divided among three major historical periods of American constitutionalism: (1) the pre-revolutionary era (early 1700s until 1775) while America was still comprised of 13 British colonies and most constitutional concerns where focused on Parliament’s abuses of power and the Executive’s complicity; (2) the executive interregnum (1775 until the early 1780s) wherein the American public feared executive authority and experimented with a weak executive; and (3) the period of legislative fear (early 1780s to 1790s) that acted as a catalyst for James Madison, Alexander Hamilton, and others to restore an energetic executive.