Judicial Foreign Policy: Lessons from the 1790s

Abstract:     
In the period from 1793 to 1797, the United States confronted its first major foreign policy crisis after adoption of the Constitution. France was at war with Britain and other European powers. The United States primary foreign policy goal was to maintain neutrality and avoid war with Britain and France. The executive branch formulated the broad contours of U.S. neutrality policy in 1793. Congress enacted legislation in 1794 to codify that policy in statutory form. However, the federal judiciary was centrally involved in implementing U.S. neutrality policy in the years 1794 to 1797. This article tells the story of the federal judiciary's active role in implementing U.S. foreign policy in the 1790s.

The "exclusive political control" thesis holds that the judiciary is barred from participating in foreign affairs decision-making because the Constitution grants the political branches exclusive control over foreign policy. This article demonstrates that the exclusive political control thesis is incompatible with the original understanding of the Founders. The judiciary's active role in implementing U.S. neutrality policy in the 1790s provides compelling evidence that the Founders did not endorse the exclusive political control thesis. In fact, the Cabinet officers and Supreme Court Justices of that era, most of whom were intimately involved in the process of drafting and ratifying the Constitution, reached a consensus that the judicial branch, not the executive branch, should play the lead role in deciding several of the major issues that the U.S. confronted in its effort to avoid entanglement in a European war.

Keywords: legal history, foreign relations law, international law, national security law, constitutional law

Working Paper Series