International Law as Sword or Shield? Early American Foreign Policy and the Law of Nations
Journal of International Law and Politics, Vol. 32, p. 1, 1999
87 Pages Posted: 11 Jun 2006
The history of international law at the Founding is at the center of a continuing debate on the federal nature of international law in the modern age. In support of federal exclusivity, mainstream scholars have amassed an impressive array of judicial and political quotes from the 1780s and 1790s. The revisionists (those who argue against federal exclusivity) admit the existence of this language but argue that it can be dismissed as politically motivated at the time and as antiquarian from a modern legal perspective. However, a review of the sparse historical literature uncovers a surprising lack of context,either political or social, to support the various contested narratives. Despite, or perhaps because of, the surprising paucity of writings on this essential topic, the few that have been authored have had a far-reaching impact. The unfortunate result has been the further propagation of many myths about the nature of late eighteenth-century America and the role of the law of nations within it.
This paper seeks to place the political discourse of the law of nations into an intellectual, economic, and political history of the times. In so doing, I argue that the law of nations played a central role in formulating federal foreign policy and in shaping the early years of federal jurisdiction.
Keywords: law of nations, international law, history, vattel, foreign policy, declaration of indepedence
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