David Sloss (Saint Louis University – School of Law) has posted Judicial Foreign Policy: Lessons from the 1790s on SSRN. Here is the 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 judiciarys 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 judiciarys 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.
And from the conclusion:
This concluding section briefly highlights two important historical points and discusses the contemporary relevance of the privateering cases. The first key historical point relates to Britain’s use of lawfare tactics. As noted above, the Council on Foreign Relations wrote in 2003 that lawfare was a “new phenomenon.”250 Part IV showed that lawfare is not a new phenomenon; Britain used lawfare tactics successfully in the 1790s to help induce French privateers to stop bringing their prizes into U.S. ports.
Second, although the privateering cases raised significant national security and foreign policy issues that were intimately connected to U.S. neutrality policy, the Washington Administration chose to defer to the judicial branch and allow judicial decision-making in the privateering cases to guide the implementation of U.S. neutrality policy. Four factors help explain the government’s decision to handle these cases by means of private adjudication in the courts, rather than diplomatic negotiation conducted by the executive branch. First, many of the cases required someone to scrutinize large amounts of conflicting evidence, and the executive branch did not have the personnel to handle that task.251 Second, the main goal of U.S. policy was to preserve U.S. neutrality; since the British and French were adversaries in most of the cases, it helped promote an appearance of neutrality to let the judiciary serve as a neutral decision-maker, rather than having the executive branch resolve legal disputes between the British and the French. Third, given the natural law viewpoint that was prevalent among the Founders, many of the Founders probably believed that the ship owners had a natural right to present their claims in court to defend their property rights. Finally, resolution of the privateering cases required a decision-maker to apply general legal rules in specific factual situations that involved disputes over the property rights of private parties. Some members of the Founding generation probably believed that the Constitution granted the judicial branch primary (but not exclusive) responsibility for deciding cases involving the rights of private parties that required the application of law to fact.
The French privateering cases are similar to modern war on terror cases in one key respect – in both sets of cases, questions of private rights are/were inextricably linked to questions of international law and U.S. foreign policy.
Highly recommended. In my opinion, this is an important and illuminating historical study.
I have one quibble with this piece. It purports to show that the exclusive political control thesis cannot be defended on originalist ground, but it offers no account of the content of originalist constitutional theory. Most contemporary originalists endorse some variation of original public meaning originalism, which holds that the "original meaning" is the conventional semantic meaning of the text. Sloss emphasizes historical practice, which may be evidence of the public meaning of the text, but is not equivalent to such meaning. So far as I could tell, there is no mention of "original public meaning" of the constitutional text.
That quibble aside, download it while its hot!
P.S. I’ve just learned that Sloss is moving to Santa Clara.