Robert Reinstein

The Haitian Revolution and its aftershocks had a profound impact on American constitutionalism. The six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power and changed the nation’s approach towards the law of nations. The Executive took effective control over the nation’s most important dimensions of foreign policy, creating and employing instruments of power that are used to this day. For the first time, presidents unilaterally provided funds and military equipment to a foreign belligerent, intervened in a foreign civil war, negotiated secret commercial, diplomatic and military agreements with a foreign nation and the leader of a rebellion, used military force abroad, expanded the treaty and recognition powers and, with the acquiescence of the Supreme Court, violated accepted doctrines of the law of nations. These actions formed a blueprint for executive dominance over foreign policy, war and international law. This forgotten history is essential for a contemporary understanding of the foundations of modern presidential power over foreign affairs and war. Many of the most controversial questions presidents face in the modern era — whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, adhere to the requirements of international law — were first faced in the American reactions to the Haitian Revolution. Those decisions set precedents for the expansion of executive power whose legacies still exert a deep if unrecognized influence today. This article also illuminates the relationship of slavery to American foreign policy in the early Republic. The near-universal abhorrence and fear of a slave revolt was a powerful force in executive foreign policy decisions. But two other factors also influenced presidents in dealing with the Haitian Revolution — trade and geopolitics. When these other forces overcame domestic pro-slavery demands, presidents supported blacks fighting for their freedom and helped to create independence from the crucible of a slave revolt. However, when these forces were aligned with, or at least did not conflict with, the existential threat of a permanently successful slave revolt, the determination to isolate or crush the Haitian Revolution prevailed. As Haiti lost its strategic and economic importance to the United States, a consensus developed in the executive, legislative and judicial branches that, in the legal contemplation of the American government, the nation of Haiti did not exist.

This article explores the outer limits of congressional power. The debate over those limits began in 1791 when James Madison challenged the constitutionality of Alexander Hamilton’s Bank of the United States in the First Congress and has continued through the present. According to Madison, the Necessary and Proper Clause was constrained by three doctrines: implied powers must be “direct and incidental” to express powers; they could not be used to invert constitutional ends and means; and powers of exceptional importance could not be derived from implication. Although Madison’s challenges to the Bank failed in the First Congress and in McCulloch v. Maryland, his limiting doctrines have recently been resurrected in an impressive body of scholarship and adopted by several Supreme Court Justices. In addition, eminent scholars have meticulously analyzed McCulloch and argue that this foundational opinion, conventionally regarded as affording great discretion to Congress in the use of impl...

The dramatic unilateral decisions of the Washington administration, particularly during the Neutrality Crisis of 1792-1794, have been the bases of expansive theories of plenary executive powers over foreign affairs. This paper presents an original historical and jurisprudential account of the Neutrality Crisis and draws three principal conclusions: First, the source of the Washington administration's constitutional authority was the duty of the Executive, under the Take Care Clause, to obey the law of nations. This source of authority was (1) repeatedly asserted in the administration's public declarations; (2) the basis of its private deliberations; (3) consistent with the jurisprudence of the founding generation; and (4) explanatory of the actions that were taken (and not taken) by the administration. No other theory of executive power satisfies these criteria. Historians and legal scholars have consistently rejected this thesis, claiming that Washington was not executing a...

INTRODUCTION 1 I. THE POLITICAL PRELUDE TO MARBURY 11 II. THE LITIGATION 16 A. Suing Directly in the Supreme Court . 17 B. The Legal Arguments . 23 C. The Decision . 28 III. THE RULE OF LAW ANALYSIS IN MARBURY . 32 A. Positivism and Marbury’s Legal Rights 33 B. “A Government of Laws, and Not of Men” 35 C. Political Questions and Legal Duties . 36 D. A Coercive Remedy Against the Government . 40 E. Setting the Limits of Article III .. 42 F. The Role of Courts in Constitutional Government .. 45 IV. WAS MARBURY DECIDED CORRECTLY? .. 50 A. Section 13 as a Grant of “Power” 53 B. The Supreme Court’s Original and Appellate Jurisdiction .. 72 1. Statutory Construction .. 72 2. Constitutional Construction and the Exceptions Clause.. 74 C. Jurisdiction and the Merits .. 77 V. THE SOURCES OF MARBURY’S PRINCIPLES OF JUDICIAL REVIEW 80 VI. JUDICIAL REVIEW IN THE DEBATES OVER RATIFICATION .. 94 A. Impeachment, Judicial Independence and Political Accountability . 96 B. Threats to the State Courts ...

This short essay, written as an introduction to a symposium on federalism, asks whether there is a judicially enforceable constitutional boundary of exclusive state authority beyond which Congress cannot reach and whether there are areas of state autonomy that may be judicially implied from the nature of our federal system. While the modern Supreme Court's answer to these questions is clearly yes, this essay argues that the text and structure of the Constitution establish that there are no judicially enforceable limits on Congressional power in the cause of federalism, beyond those in the literal text of the Constitution. I do not rely on the political safeguards of federalism. The Framers did provide the States with three important powers to influence the composition and functioning of the federal government - the powers to select Senators, determine the qualifications for voting for Representatives, and determine the method for selecting Presidential electors. But through a wa...

Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to several current theories and cases concerning presidential power.The construction of the presidency and the allocation of legislative and executive powers can be understood only by an examination of the historical experiences that influenced the Framers. Prominent among these were the preceding two centuries of constitutional dev...

... Dean and Professor of Law, Temple University Beasley School of Law. ... Bd. of Regents, 528 US 62, 91 (2000) (same for Age Discrimination in Employment Act); Alden v. Maine, 527 US 706, 758 (1999) (same for Fair Labor Standards Act); Fla. Prepaid Postsecondary Educ. ...

Professor Reinstein and Mr. Silverglate argue that the scope of the Constitution's speech or debate privilege, article I, section 6, must be defined historically, but not by static criteria derived from the clause's ancient judicial origins. After tracing the dynamic evo-lution of the privilege ...