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ARTICLES
RECOGNITION: A CASE STUDY ON THE ORIGINAL
UNDERSTANDING OF EXECUTIVE POWER
Robert J. Reinstein *
I. THE POWER OF RECOGNITION
Let‘s fast-forward to a point in the near future. The President
has given up on unsuccessful American mediation attempts to secure a peace treaty between Israel and the Palestinians. To resolve this longstanding impasse, the President offers his own
peace plan for the Middle East, which includes the creation of the
State of Palestine with defined borders, including the partition of
Jerusalem, and the settlement of other outstanding issues that
have divided the parties. The plan is accepted by the Palestinian
Authority but not by Israel. The Palestinian Authority then declares the independent State of Palestine that has the borders and
other conditions prescribed in the President‘s proposal. The President quickly announces that the United States recognizes the
State of Palestine with those borders and conditions. Does he
have the constitutional power to so bind the United States? And
suppose that Congress passes legislation to override the President‘s decision. Is that legislation constitutional?
The hornbook answer is that the President would prevail. ―Under the Constitution of the United States, the President has exclusive authority to recognize or not to recognize a foreign state or
government, and to maintain or not to maintain diplomatic rela-
* Clifford Scott Green Professor of Law, Temple University Beasley School of Law.
My thanks to my colleagues Jeffrey Dunoff, David Hoffman, and Gregory Mandel for their
helpful suggestions, and to Michael Connett and Matthew Adler for their extraordinary
research assistance.
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tions with a foreign government.‖1 Moreover, ―[t]he President‘s
determinations and actions within the scope of this [power], if
they accord with the Constitution in other respects, are binding
on Congress and the courts.‖2 And the President‘s recognition
power includes the determination of foreign sovereignty over territory and boundaries, and the policies incident to recognition.3
These principles are consistent with the views of scholars on
foreign affairs and the Constitution since the latter part of the
nineteenth century4 and, more importantly, with the view of the
Supreme Court since at least 1937.5 Thus, under prevailing doc1. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §
204 (1987).
2. Id. § 204 cmt. a.
3. Id. § 204 cmt. a, reporters‘ note 1.
4. E.g., THOMAS A. BAILEY, A DIPLOMATIC HISTORY OF THE AMERICAN PEOPLE 7–8
(10th ed. 1980); EDWARD S. CORWIN, THE PRESIDENT‘S CONTROL OF FOREIGN RELATIONS
71, 82 (1917); LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 88
(2d ed. 1996); HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 69, 78
(1990); H. JEFFERSON POWELL, THE PRESIDENT‘S AUTHORITY OVER FOREIGN AFFAIRS app.
at 152–53 (2002); MICHAEL D. RAMSEY, THE CONSTITUTION‘S TEXT IN FOREIGN AFFAIRS
127–28, 328–29 (2007); Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power
over Foreign Affairs, 111 YALE L.J. 231, 312–13 (2001); see also Recognition: By Whom Determinable, 1 Hackworth DIGEST § 31, at 161–66 (discussing the President‘s sole authority
to recognize new states); States: their Recognition and Continuity: Recognition, By Whom
Determinable, 1 Moore DIGEST § 75, at 243–48 (same); Intervention with Foreign Sovereignties: Such Recognition Determinable by Executive, 1 Wharton DIGEST § 71, at 551–52
(same).
I made the same assertion (which I now regret) in a recent article. Robert J. Reinstein,
The Limits of Executive Power, 59 AM. U. L. REV. 259, 296 (2009) (citing 3 JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1560 (1883)).
One dissenter is David Gray Adler. He states that the Receive Ambassadors Clause in
Article II, Section 3 does grant presidential power to recognize foreign governments but
argues that the power is ministerial and not discretionary. His position is that the original
meaning of the clause was to limit the recognition power to the strictures of the law of nations as expressed by the foremost treatise writers on that subject. David Gray Adler, The
President’s Recognition Power, in THE CONSTITUTION AND THE CONDUCT OF AMERICAN
FOREIGN POLICY 133, 133–57 (David Gray Adler & Larry N. George eds., 1996).
5. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) (―Political recognition is exclusively a function of the Executive.‖); Nat‘l City Bank of N.Y. v. Republic of
China, 348 U.S. 356, 358 (1955) (―The status of the Republic of China in our courts is a
matter for determination by the Executive and is outside the competence of this Court.‖);
United States v. Pink, 315 U.S. 203, 207 (1942) (―The authority of the political department
is not limited . . . to the determination of the government to be recognized. The President
is also empowered to determine the policy to govern the question of recognition. Objections
to the President‘s determination of the government ‗as well as to the underlying policy‘
must be addressed to the political department.‖ (quoting Guar. Trust Co. v. United States,
304 U.S. 126, 138 (1938))); Guar. Trust Co. v. United States, 304 U.S. 126, 137 (1938)
(―What government is to be regarded here as representative of a foreign sovereign state is
a political rather than a judicial question, and is to be determined by the political department of the government.‖); United States v. Belmont, 301 U.S. 324, 330 (1937) (―The recognition, establishment of diplomatic relations, the assignment, and agreements with re-
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trine, should the President recognize a Palestinian state, that decision, as well as the determination of boundaries and other subjects related to recognition, would be within his constitutional
powers and would not be subject to revision by Congress or questioned in the courts.
The recognition (or nonrecognition) of foreign states and governments has certain legal consequences. A nonrecognized state
or government cannot sue in the courts of the United States,6 except perhaps if given clearance by the State Department.7 Nor can
it ordinarily invoke the doctrine of foreign sovereign immunity.8
When the President recognizes a government, this validates, for
United States courts, all of the actions of that government within
its own territory, retroactive to the establishment of the government.9
However, the recognition power has been most significant as
an important weapon in the Executive‘s foreign policy arsenal for
more than a century and as a linchpin for expanding executive
power. Some notable examples: To obtain the lease for the Panama Canal, President Theodore Roosevelt used the recognition
power to create a new country from within the boundaries of
another.10 President Taft used this power repeatedly as an important element of ―dollar diplomacy,‖ to coerce commercial and economic concessions from, and to justify military interventions in,
Latin American countries.11 President Wilson continued Taft‘s
spect thereto, were all parts of one transaction, resulting in an international compact between the two governments. That the negotiations, acceptance of the assignment and
agreements and understandings in respect thereof were within the competence of the
President may not be doubted. . . . [I]n respect of what was done here, the Executive had
authority to speak as the sole organ of that government.‖).
6. Guar. Trust, 304 U.S. at 137 (citations omitted); Matimak Trading Co. v. Khalily,
118 F.3d 76, 84 (2d Cir. 1997); Nat‘l Petrochem. Co. of Iran v. M/T Stolt Sheaf, 860 F.2d
551, 553 (2d Cir. 1988); KMW Int‘l v. Chase Manhattan Bank N.A., 606 F.2d 10, 16–17 (2d
Cir. 1979); Republic of Vietnam v. Pfizer, Inc., 556 F.2d 892, 894 (8th Cir. 1977) (citing
Guar. Trust Co., 304 U.S. at 137).
7. See, e.g., Matimak, 118 F.3d at 84.
8. Nat’l City Bank of N.Y., 348 U.S. at 358; see Klinghoffer v. S.N.C. Achille Lauro,
937 F.2d 44, 48–49 (2d Cir. 1991).
9. Banco Nacional, 376 U.S. at 417; Oetjen v. Cent. Leather Co., 246 U.S. 297, 302–
03 (1918); Ricaud v. Am. Metal Co., 246 U.S. 304, 308–09 (1918).
10. TAYLOR COLE, THE RECOGNITION POLICY OF THE UNITED STATES SINCE 1901, at
38–42 (1928); JULIUS GOEBEL, JR., THE RECOGNITION POLICY OF THE UNITED STATES 212–
17 (1915).
11. SAMUEL FLAGG BEMIS, A DIPLOMATIC HISTORY OF THE UNITED STATES 532–33 (4th
ed. 1955) [hereinafter BEMIS, A DIPLOMATIC HISTORY]; COLE, supra note 10, at 44–51;
GEORGE C. HERRING, FROM COLONY TO SUPERPOWER: U.S. FOREIGN RELATIONS SINCE
1776, at 373–77 (2008).
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policy12 and also used the recognition power to export democracy.
Before the First World War, he refused to recognize undemocratic
regimes in Latin America and helped democratic insurgents to
oust them;13 after the War, he worked with Great Britain and
France to carve up Europe by creating new countries based on
ethnic concentrations.14 Upon the overthrow of the Russian Czar
in 1917, Wilson promptly recognized the Provisional Government
but then refused to recognize the successor Bolshevik regime15—a
policy of diplomatic isolation that lasted until President Franklin
Roosevelt recognized the U.S.S.R. in 1933.16 As part of that recognition package, FDR entered into executive agreements with the
Soviet regime that nullified lawsuits pending in United States
courts which sought compensation for the expropriations of private property.17 These actions led to the Supreme Court‘s unqualified endorsement of the President‘s recognition power in cases
that upheld, for the first time, sole executive agreements, on the
theory that they were part of the recognition decision, and also
held that those agreements had the same effect as treaties in superseding contrary state legislation.18
Two more examples, both in 1948, influenced United States
foreign policy for many years. President Truman recognized the
State of Israel eleven minutes after its declaration of independence, even though Israel was under a military assault from Arab
states.19 But Truman refused to recognize the People‘s Republic of
China (―PRC‖),20 even though the Communist regime had won the
civil war and controlled the entire country except for the island of
Taiwan;21 and that policy of isolation lasted until 1979, when
President Carter finally recognized the PRC.22 Carter also added
to the executive arsenal by unilaterally rescinding the Taiwan
12. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 533–34.
13. The most famous instance was Wilson‘s refusal to recognize the Huerta regime in
Mexico in 1913, which contributed to his overthrow the following year. See COLE, supra
note 10, at 53–61; HERRING, supra note 11, at 391–94.
14. HERRING, supra note 11, at 422.
15. Id. at 414–15. Wilson also sent an expeditionary force of about 20,000 troops to
support the ―Whites‖ in their attempt to overthrow the Bolshevik regime. Id. at 415;
MICHAEL KETTLE, CHURCHILL AND THE ARCHANGEL FIASCO 88 (1992).
16. BAILEY, supra note 4, at 7.
17. United States v. Belmont, 301 U.S. 324, 326 (1937).
18. United States v. Pink, 315 U.S. 203, 229 (1942); Belmont, 301 U.S. at 330–32.
19. BAILEY, supra note 4, at 7; HERRING, supra note 11, at 628–29.
20. BAILEY, supra note 4, at 7.
21. Id. at 784–85.
22. Id. at 968.
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Mutual Defense Treaty on the ground that the treaty was with a
government that the United States no longer recognized.23 These
actions illuminated the breadth of the recognition power: a treaty
that had been made by a President with the approval of twothirds of the Senate was rescinded by another President without
the approval of the Senate.24 A challenge to this exercise of unilateral executive power failed in the Supreme Court.25 And more recently, President Clinton used his executive authority to recognize the de jure government of Haiti as justification for sending
American military forces to restore that regime to power.26
None of the incidents described above involved a situation in
which Congress attempted to override the Executive‘s decision by
statute. Moreover, although Supreme Court decisions since 1937
have consistently referred to the executive recognition power as
plenary and exclusive, the earlier decisions were much more ambivalent.27 Actually, no Supreme Court case (nor any lower court
23. See Goldwater v. Carter, 617 F.2d 697, 700, 708 (D.C. Cir.), vacated, 444 U.S. 996
(1979).
24. See BAILEY, supra note 4, at 968.
25. The Supreme Court vacated the D.C. Circuit‘s decision in Goldwater v. Carter
without reaching the merits. 444 U.S. at 996 (1979). Justice Rehnquist, joined by Chief
Justice Burger and Justices Stewart and Stevens, concurred in the judgment on the
ground that the issue was a nonjusticiable political question. Id. at 1002 (Rehnquist, J.,
concurring). Justice Powell concurred in the judgment on the ground that the case was not
ripe for judicial review. Id. at 997 (Powell, J., concurring). Justices Blackmun and White
thought that the Court‘s summary disposition was incorrect and voted to hear the case on
the merits. Id. at 1006 (Blackmun, J., dissenting). Only Justice Brennan reached the merits and relied on the Executive‘s recognition power as giving the President the authority
to nullify the treaty: ―Abrogation of the defense treaty with Taiwan was a necessary incident to Executive recognition of the Peking Government, because the defense treaty was
predicated upon the now-abandoned view that the Taiwan Government was the only legitimate political authority in China.‖ Id. at 1006–07 (Brennan, J., dissenting).
26. See POWELL, supra note 4, at 121–22.
27. In the earliest Supreme Court cases, the Marshall Court held that the judiciary
could not independently determine the status of a new state or government and suggested
that the recognition power was held jointly by Congress and the President. See United
States v. Palmer, 16 U.S. (3 Wheat.) 610, 634 (1818) (―[Recognition decisions] belong more
properly to those who can declare what the law shall be; who can place the nation in such
a position with respect to foreign powers as to their own judgment shall appear wise; to
whom are entrusted all its foreign relations; than to that tribunal whose power as well as
duty is confined to the application of the rule which the legislature may prescribe for it.‖);
id. at 643 (―[T]he courts . . . must view such newly constituted government as it is viewed
by the legislative and executive departments of the government of the United States.‖);
Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 324 (1818) (―[I]t belongs exclusively to governments to recognise new states . . . and until such recognition, either by our own government, or the government to which the new state belonged, courts of justice are abound to
consider the ancient state of things as remaining unaltered.‖); Rose v. Himely, 8 U.S. (4
Cranch) 241, 272 (1808) (―It is for governments to decide whether they will consider St.
Domingo as an independent nation, and until such decision shall be made, or France shall
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decision)28 had presented a conflict between the President‘s exercise of the recognition power and the operation of a congressional
statute. The judicial statements that the executive recognition
power is plenary in nature are technically dicta, but dicta that is
repeated often enough tends to take on the force of a holding.
Zivotofsky v. Secretary of State is the first case to actually
present a conflict between a statute and the recognition power29—
and in a context that bears some resemblance to the hypothetical
with which I began this paper. In 2002, a federal law was enacted
that requires the passport office to record Israel as the place of
birth of a United States citizen born in Jerusalem.30 However, this
law, which appears mandatory,31 is in conflict with executive recognition decisions. When President Truman recognized the State
of Israel in 1948, he refused to acknowledge that Jerusalem was
subject to Israeli sovereignty, leaving that contentious issue open
for future resolution; and this has been the policy of each succeed-
relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered, and the sovereign power of France over that colony as still subsisting.‖).
Williams v. Suffolk Insurance Co. was the first decision to state that recognition was an
executive function:
[C]an there be any doubt, that when the executive branch of the government,
which is charged with our foreign relations, shall in its correspondence with a
foreign nation assume a fact in regard to the sovereignty of any island or
country, it is conclusive on the judicial department? . . . [I]t is not . . . the
province of the Court to determine, whether the executive be right or wrong.
It is enough to know, that in the exercise of his constitutional functions, he
has decided the question. Having done this under the responsibilities which
belong to him, it is obligatory on the people and government of the Union.
38 U.S. (13 Pet.) 415, 420 (1839). To the same effect, see Kennett v. Chambers, 55 U.S. (14
How.) 38, 50–51 (1852). Yet in late nineteenth and early twentieth century cases, the Supreme Court returned to Marshall‘s formulation that the recognition power belonged to
Congress and the President. See Jones v. United States, 137 U.S. 202, 212 (1890) (―Who is
the sovereign, de jure or de facto, of a territory is not a judicial, but a political question,
the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of
that government.‖); see also Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918) (quoting
Jones, 137 U.S. at 212).
28. See, e.g., Matimak Trading Co. v. Khalily, 118 F.3d 76, 88 (2d Cir. 1997), cert. denied, 522 U.S. 1091 (1998); United States v. Cnty. of Arlington, 669 F.2d 925, 929–30 (4th
Cir.), cert. denied, 459 U.S. 801 (1982); Republic of Vietnam v. Pfizer, Inc., 556 F.2d 892,
894–95 (8th Cir. 1977); Nat‘l Union Fire Ins. Co. v. Republic of China, 254 F.2d 177, 186
(4th Cir.) (citations omitted), cert. denied, 358 U.S. 823 (1958); Latvian State Cargo & Passenger S.S. Line v. McGrath, 188 F.2d 1000, 1002–04 (D.C. Cir.), cert. denied, 342 U.S. 816
(1951).
29. 571 F.3d 1227, 1228–29 (D.C. Cir. 2009), reh’g en banc denied, 610 F.3d 84 (D.C.
Cir. 2010).
30. Id. at 1229; see Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No.
107-228, § 214(d), 116 Stat. 1350, 1366 (2002).
31. See Zivotofsky, 571 F.3d at 1243 (Edwards, J., concurring).
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ing administration.32 Each member of the District of Columbia
Circuit panel agreed, however, that the clause in the Constitution
providing that the President ―shall receive Ambassadors and other public Ministers‖33 gave the President plenary and exclusive
authority to recognize foreign states and governments, and that
authority included determining the status of disputed territory
and other policies incident to recognition.34 The majority concluded that any challenge to that power would present a nonjusticiable political question.35 Judge Edwards, concurring, concluded
that the issue was justiciable and that the statute was an unconstitutional infringement on the President‘s recognition powers.36
Although the majority and Judge Edwards take different approaches, the result is the same: the President‘s recognition decision stands, and a conflicting act of Congress is not enforced.37 Yet
no matter how often courts and commentators maintain that recognition is an illusive power of the President, the nagging fact is
that the Constitution does not mention recognition. A plenary executive recognition power may be a current reality, but the constitutional source of this power is much harder to identify with
confidence.
II. THE UNCERTAIN SOURCES OF THE RECOGNITION POWER
There are four sources from which a plenary executive recognition power is said to derive—one nontextual (Justice Sutherland‘s
opinion in Curtiss-Wright) and three textual (the authority to exchange diplomats, the Receive Ambassadors Clause, and the Executive Vesting Clause). Each is discussed below. Two of these
sources are, in my view, simply not tenable—Justice Sutherland‘s
theory of inherent presidential power because it is anticonstitutional, and the textual power to exchange diplomats because that
power is shared with the Senate. The other two constitutional
provisions, the Receive Ambassadors and Executive Vesting
32. See id. at 1228 (majority opinion); id. at 1241 (Edwards, J., concurring) (citing to
State Department documents and policy statements).
33. U.S. CONST. art. II, § 3.
34. Zivotofsky, 571 F.3d at 1231 (majority opinion); id. at 1240–41 (Edwards, J., concurring).
35. Id. at 1231 (majority opinion) (citing United States v. Pink, 315 U.S. 203, 229
(1942)).
36. Id. at 1240 (Edwards, J., concurring).
37. Id. at 1232 (majority opinion); id. at 1234.
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Clauses, are arguable but present serious textual and structural
problems.
A. Curtiss-Wright
The nontextual source is the dicta about the President‘s foreign
affairs powers in Justice Sutherland‘s opinion for the Supreme
Court in the 1936 case of United States v. Curtiss-Wright Export
Corp.38 (It is considered dicta because Congress had in fact authorized the executive action in that case).39 Sutherland‘s thesis was
that the President possesses inherent and exclusive extraconstitutional powers to conduct the nation‘s foreign affairs.40 Sutherland constructed an historical narrative that the external
powers of the colonies—which had been controlled by Great Britain—were, at the moment of independence, ―passed from the
Crown‖ to the United States but not to the several states.41 He
then claimed that this power belongs solely to the President, positing ―the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of
international relations [is] a power which does not require as a
basis for its exercise an act of Congress.‖42 The next year, in United States v. Belmont, the Supreme Court upheld, in another opinion by Sutherland, President Roosevelt‘s executive agreement
with the Soviet Union because, per Curtiss-Wright, ―[t]he recognition, establishment of diplomatic relations, the assignment, and
agreements with respect thereto,‖ were exercises of plenary executive power.43 After the wholesale change in the Supreme
Court‘s composition following 1937, the Court reaffirmed CurtissWright and Belmont and held that the President has the plenary
power to recognize foreign governments and ―[t]hat authority is
not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to
govern the question of recognition,‖ such as executive agreements
which operate domestically to displace state law.44
38.
39.
40.
41.
42.
43.
44.
299 U.S. 304 (1936).
Id. at 311.
See id. at 318.
Id. at 316.
Id. at 320.
301 U.S. 324, 330 (1937).
United States v. Pink, 315 U.S. 203, 222–23, 229 (1942).
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Sutherland‘s thesis in Curtiss-Wright has been the subject of
such massive criticism that only a summary is warranted here.
That thesis contradicts the fundamental principle that the United
States can exercise only those powers that are delegated by the
Constitution.45 Moreover, the historical narrative is more creative
than descriptive. Following the Declaration of Independence and
during the entire Confederation period, all national powers were
vested in Congress, but Congress did not have, nor did it ever
claim to have, complete power over foreign affairs.46 Even if Congress had total control over foreign policy in the preconstitutional period, it hardly follows that the Constitution
transferred that entire authority to the President. The Constitution explicitly allocates foreign affairs powers between the President and Congress, with the President given some important
powers47 and Congress others.48 And, unlike the President, Congress is also given the power ―[t]o make all Laws which shall be
necessary and proper for carrying into Execution the foregoing
[Congressional] Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof.‖49
45. See RAMSEY, supra note 4, at 17; see also U.S. CONST. amend. X.
46. Michael J. Glennon, Two Visions of Presidential Foreign Affairs Power: Little v.
Barreme or Curtiss-Wright?, 13 YALE J. INT‘L L. 5, 15 (1988). For example, Congress did
not have the powers to regulate foreign commerce, tax imports, or enforce the law of nations; the states regularly taxed imports, imposed embargoes on foreign commerce, enforced the laws of nations, and violated United States treaties with impunity (particularly
the 1783 Treaty of Peace with Great Britain). RAMSEY, supra note 4, at 40–45; see also
FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL: FOREIGN AFFAIRS AND THE MAKING OF
THE CONSTITUTION 11–15, 47, 55–83 (1973).
47. The President is vested with the powers of being Commander in Chief of the military, and of the militias when called into service; of nominating ambassadors, other public
ministers and consuls; of negotiating treaties; and (assuming it is a power) of receiving
ambassadors. U.S. CONST. art. II, §§ 2–3.
48. Congress is vested with the powers to lay and collect taxes (including on imports);
to provide for the common defense; to regulate foreign commerce; to establish a uniform
rule of naturalization; to regulate the value of foreign money; to define and punish felonies
committed on the high seas and offenses against the law of nations; to declare war, grant
letters of marque and reprisal, and make rules concerning captures; to raise and support
the military; to provide for calling forth the militia to repel invasions; and to regulate the
military and the militia. Id. art. I, § 8. In addition, the Senate is given the power to veto
treaties and the appointments of ambassadors, public ministers and consuls. See id. art.
II, § 2.
49. Id. art. I, § 8, cl. 18 (emphasis added).
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Finally, although the overreaching opinion in Curtiss-Wright50
continues to be cited,51 the extra-constitutional theory of presidential power was decisively rejected by the Supreme Court in the
Steel Seizure case: ―The President‘s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.‖52 Justice Jackson‘s concurring opinion has been
adopted as the proper framework for determining the scope of executive power.53 Jackson‘s opinion acknowledges the obvious—
that the President has plenary power only when he or she is acting pursuant to an enumerated power.54 Therefore, the three possible textual sources of the recognition power should be considered.
B. Sending and Receiving Diplomats
The President has the constitutional ―Power‖ to appoint ―Ambassadors, other public Ministers and Consuls,‖55 and ―he shall
receive Ambassadors and other public Ministers.‖56 The exchange
of diplomatic envoys is usually considered conclusive evidence of
mutual recognition between governments, and this is therefore
50. Professor Powell argues that this interpretation reads too much into CurtissWright because Sutherland said that ―the executive‘s authority over foreign affairs ‗must
be exercised in subordination to the applicable provisions of the Constitution.‘‖ POWELL,
supra note 4, at 127 n.133 (quoting United States v. Curtiss-Wright Exp. Corp., 299 U.S.
304, 320 (1936)). This ambiguous qualification adds to the incoherence of the opinion. It
certainly means the obvious—that the President‘s foreign affairs powers do not trump the
Bill of Rights, and that the President still needs senatorial consent for appointments and
treaties. But does it also mean that the President cannot exercise foreign affairs powers
vested in Congress? That is unlikely. Sutherland concluded that the President could impose an embargo on arms shipments to foreign nations without authority from Congress.
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 329 (1936), 299 U.S. at 329. Yet
one of Congress‘s enumerated powers is the regulation of commerce with foreign nations.
The very facts of the case demonstrate the extreme breadth of Sutherland‘s thesis.
51. See, e.g., Republic of Iraq v. Beaty, 556 U.S. ___, ___, 129 S. Ct. 2183, 2189 (2009);
United States v. Lara, 541 U.S. 193, 201 (2004); Am. Ins. Ass‘n v. Garamendi, 539 U.S.
396, 414–15 (2003); Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363, 375 (2000).
52. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 585 (1952).
53. See, e.g., Medellín v. Texas, 552 U.S. 491, 524–25 (2008); Hamdan v. Rumsfeld,
548 U.S. 557, 593 n.23 (2006); id. at 638–39 (Kennedy, J., concurring in part); Dames &
Moore v. Regan, 453 U.S. 654, 668–69 (1981).
54. Steel Seizure, 343 U.S. at 640 (Jackson, J., concurring) (―I did not suppose, and I
am not persuaded, that history leaves it open to question, at least in the courts, that the
executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.‖).
55. U.S. CONST. art. II, § 2, cl. 2.
56. Id. art. II, § 3.
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said to be a source of the executive recognition power.57 There are
two problems with this position. First, appointments of ambassadors and public ministers are subject to the consent of the Senate.58 It is, to say the least, quite difficult to derive an exclusive
executive power from one that is shared with a branch of Congress. Second, as stated by perhaps the leading authority on diplomacy, the recognition decision itself must be distinguished from
acts such as the exchange of diplomatic envoys:
The right to send and receive diplomatic agents flows from recognition as a sovereign State and was formerly known as the right of legation (ius legationis). The recognition of a new State, the establishment of diplomatic relations with that State, and the establishment of
a permanent diplomatic mission in that State are three distinct steps.
It may however sometimes happen that two of the three steps occur
simultaneously or in immediate sequence, which can give rise to confusion between them.59
Historically, recognition was given by a written or oral declaration.60 Acts such as negotiating a treaty, sending or officially receiving diplomatic envoys, giving exequaturs to foreign consuls,
and forming conventional diplomatic relations are also considered
evidence of recognition.61 But these are all distinct acts. For example, the United States recognizes the Castro regime in Cuba,
but neither country has sent or received diplomatic envoys, nor
have they had diplomatic relations.62 The United States has never
recognized the Palestinian Authority as a government, but diplomatic relations (at the highest levels) have been ongoing since the
57. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 204
cmt. a, reporters‘ note 2 (1987).
58. U.S. CONST. art. II, § 2.
59. ERNEST MASON SATOW, A GUIDE TO DIPLOMATIC PRACTICE 71 (Ivor Roberts ed.,
6th ed. 2009) (emphasis added).
60. States: Their Recognition and Continuity, 1 Moore DIGEST, supra note 4, § 27, at
73.
61. Id. The discretionary use of the recognition power as an instrument of foreign policy created a diplomatic problem: a declaration that recognized a new government was interpreted (sometimes incorrectly) as approving that government and its conduct. To avoid
this, the Executive adopted the practice of generally avoiding explicitly to recognize or refusing to recognize a new government. See Nat‘l Petrochem. Co. of Iran v. M/T Stolt Sheaf,
860 F.2d 551, 554 (2d Cir. 1988). Instead of declarations of recognition or nonrecognition,
the more modern practice is to either continue or break off diplomatic relations with the
new government. SATOW, supra note 59, at 75 (stating that Great Britain also follows this
practice). However, there have been situations (such as Haiti, discussed above) in which
the President declared that he did not recognize a new government. See JEFFREY L.
DUNOFF ET AL., INTERNATIONAL LAW: NORMS, ACTORS, PROCESS 156–58 (3d ed. 2010).
62. DEP‘T OF STATE, COMM. ON FOREIGN RELATIONS, 88TH CONG., 1ST SESS., EVENTS IN
UNITED STATES-CUBAN RELATIONS 1–3, 19 (Comm. Print 1963).
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Oslo Accords.63 And, perhaps most famously, when President Nixon made his celebrated trip to China in 1972, the United States
had not recognized the PRC but continued to recognize the government in exile in Taiwan as the government of China.64 Yet
Nixon and Kissinger negotiated directly with the leaders of the
PRC and issued the Shanghai Communiqué, which was to be a
blueprint for future relations between the two countries, and they
promised to recognize the PRC in Nixon‘s second term.65 Following Nixon‘s visit, diplomatic envoys were exchanged, and permanent (albeit informal) embassies (called ―liaison offices‖) were established in Washington and Beijing.66 These conditions continued for seven years, until 1979, when the PRC was recognized
and the government in Taiwan was derecognized.67
C. The Receive Ambassadors Clause
The constitutional provision that the President ―shall receive
Ambassadors and other public Ministers‖ is the most often cited
source of a plenary executive recognition power and has the longest historical pedigree.68 There are textual problems with relying
on this Clause also. Like the exchange of diplomatic envoys, the
act of receiving ambassadors is evidence of, but distinct from, the
recognition decision.69 Moreover, as Louis Henkin observed, this
63. See HERRING, supra note 11, at 935.
64. Id. at 778–79, 791–93.
65. Id. at 717–78, 791–92.
66. Id. at 793.
67. Id. at 839; PHILIP MICHAEL PANTANA, SR., AMERICA: A PURPOSE-DRIVEN NATION
119 (2007).
68. U.S. CONST. art. II, § 3. From my research, it appears that the first person to
make this argument was Alexander Hamilton, writing as Pacificus in 1793. See Alexander
Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 THE PAPERS OF ALEXANDER
HAMILTON 33, 41 (Harold C. Syrett et al. eds., 1969) [hereinafter Pacificus No. 1]. Commentators picked up the argument that the Receive Ambassadors Clause was the source of
the President‘s recognition power, although they left unsettled whether Congress could
override an executive decision on recognition. See 1 St. George Tucker, BLACKSTONE‘S
COMMENTARIES app. at 341 (1803) (―[The Receive Ambassadors Clause is] a power of some
importance, as it may sometimes involve in the exercise of it, questions of delicacy; especially in the recognition of authorities of a doubtful nature.‖); see also WILLIAM RAWLE, A
VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 195 (2d ed. 1829) (noting
that the Receive Ambassadors Clause implies presidential recognition power, but that
Congress can override it); 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES §§ 1560–1561 (1833) (agreeing with Rawle that the Receive Ambassadors
Clause implies executive recognition power, but noting that whether Congress can override it is a difficult question).
69. See supra notes 62–67 and accompanying text.
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Clause is not written as a ―‗power‘ of the President‖ but is placed
in Section 3 of Article II, which contains a list of executive duties.70 ―Receiving ambassadors seems a function, an assigned duty, a ceremony that in many countries is performed by a figurehead.‖71
Another textual problem is that, unlike the other provisions in
the Constitution that relate to foreign diplomats (the Appointments Clause in Article II and the subject-matter jurisdiction
clauses in Article III), the Receive Ambassadors Clause omits
consuls.72 If this Clause is in fact ministerial, the omission of consuls makes sense. Consuls do not have the status, power, or privileges of diplomatic envoys;73 and there is no reason of protocol for
a head of state to receive them. On the other hand, if the Clause
is a grant of the recognition power, the omission of consuls is
troubling. Because of financial constraints and a perceived lack of
necessity, many countries at the time of the founding, including
the United States, sent few permanent envoys abroad.74 Instead,
they sent consuls, primarily to oversee their commercial interests.75 Consuls could operate formally only if they received exequaturs from the receiving countries, and those documents were
evidence that the consuls represented recognized nations.76
These textual objections are not conclusive. The omission of
consuls from the Receive Ambassadors Clause may well have
been an oversight.77 And the distinction between power and duty
70. HENKIN, supra note 4, at 37–38.
71. Id. at 38.
72. That is, the Appointments Clause, discussed above, provides that the President
shall nominate and, with the consent of the Senate appoint ―Ambassadors, other public
Ministers and Consuls.‖ U.S. CONST. art. II, § 2. The judicial power clause includes as a
category of federal court jurisdiction ―all Cases affecting Ambassadors, other public Ministers and Consuls,‖ and vests the Supreme Court with original jurisdiction over such cases.
Id. art. III, § 2.
73. See M.J. PETERSON, RECOGNITION OF GOVERNMENTS 114–15 (1997); 3 STORY, supra note 68, § 1559.
74. See HERRING, supra note 11, at 58.
75. See id. (noting that in the early stages of the Washington administration, the ―foreign service‖ consisted of diplomatic envoys in France, Great Britain, Spain, and Portugal,
and an agent in Amsterdam, and in 1790, Washington ―appointed twelve consuls and also
named six foreigners as vice-consuls‖). For example, Prussia, with whom the United States
had a treaty of amity and commerce, did not send a diplomatic envoy but did assign a consul. See Letter from Charles Gottfried Paleske to Thomas Jefferson (June 19, 1792), in 24
THE PAPERS OF THOMAS JEFFERSON 99, 99–101 (John Catanzariti et al. eds., 1990).
76. E.g., RAWLE, supra note 68, at 224–25; 3 STORY, supra note 68, § 1559.
77. In The Federalist No. 42, Madison asserted, with unusual carelessness, that consuls were included in the Receive Ambassadors Clause. He noted that the power to send
and receive ambassadors was vested in Congress by the Articles of Confederation. THE
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can be elusive. For example, Section 3 enjoins the President to
―take Care that the Laws be faithfully executed.‖78 This is plainly
a duty in that it prohibits the President from suspending laws (as
the Stuart kings did in England),79 but it may also imply a power
to execute the laws.80
There is another problem with viewing the Receive Ambassadors Clause as a source of executive power. James Wilson, the
leader of the pro-presidential faction in the Constitutional Convention, assured the delegates that ―[h]e did not consider the Prerogatives of the British Monarch as a proper guide in defining the
Executive powers. . . . The only powers he conceived strictly Executive were those of executing the laws, and appointing officers
not [connected with and] appointed by the Legislature.‖81 The
Constitution allocated the secular royal prerogatives in Articles I
and II. Most of these prerogative powers were granted in their
entireties to Congress.82 Others were given to the President, but
qualified by limitations in scope, congressional override, or senatorial veto.83
FEDERALIST NO. 42, at 261 (James Madison) (Clinton Rossiter ed., 2003). According to
Madison, the only difference in the Constitution was the expanded ―power of appointing
and receiving ‗other public ministers and consuls.‘‖ Id. (emphasis added). Madison allowed
that ministers were included because the United States would prefer to send abroad a
lower (and less expensive) grade of diplomatic envoy than ambassadors. See id. As for consuls, the problem was that
under no latitude of construction will the term [ambassadors] comprehend
consuls. . . . But the admission of consuls into the United States, where no
previous treaty has stipulated it, seems to have been nowhere provided for [in
the Articles]. A supply of the omission is one of the lesser instances in which
the convention have improved on the model before them.
Id. This would have been a good reason for consuls to have been included in the Receive
Ambassadors Clause, but, deliberately or not, they were omitted.
78. U.S. CONST. art. II, § 3.
79. Reinstein, supra note 4, at 278–80.
80. See Edward T. Swaine, Taking Care of Treaties, 108 COLUM. L. REV. 331, 359–64
(2008).
81. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 65–66 (Max Farrand ed.,
rev. ed. 1966) (June 1, 1787) [hereinafter RECORDS OF THE FEDERAL CONVENTION].
82. See David Gray Adler, The Constitution and Presidential Warmaking, in THE
CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY, supra note 4, at 183,
198. Fourteen of the twenty-five specific plenary powers that are vested in Congress in
Article I, section 8, were prerogatives of the King. They are listed in Reinstein, supra note
4, at 304 n.276.
83. Reinstein, supra note 4, at 305 (―The Commander-in-Chief power was limited by
vesting the war powers and substantial control over the military in Congress. The treaty
and appointments powers (including the appointment of ambassadors and other public
ministers) were made subject to the prior approval of the Senate, while the veto power was
subject to congressional override. The pardoning power could be applied only to a relative-
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The Receive Ambassadors Clause is not qualified. If this clause
vests plenary recognition power in the President, it would be a
remarkable singularity in the Constitution—giving a unilateral
royal prerogative to the President. Did the Convention do this?
According to Alexander Hamilton, hardly a shrinking violet
where executive power was concerned, it did not.84 In The Federalist No. 69, Hamilton went clause-by-clause in comparing each
presidential power with its royal prerogative counterpart and
concluded that none was equivalent.85 As for the Receive Ambassadors Clause, Hamilton wrote:
The President is also to be authorized to receive ambassadors and
other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration
of the government; and it was far more convenient that it should be
arranged in this manner than that there should be the necessity of
convening the legislature, or one of its branches, upon every arrival
of a foreign minister, though it were merely to take the place of a departed predecessor.86
This was Hamilton as Publius in 1788. Only five years later, as
Pacificus, Hamilton did an about-face in his essays on the Neutrality Proclamation and treaties with France. Now, Hamilton asserted that the Receive Ambassadors Clause empowered the
President, in his discretion, to recognize, or to refuse to recognize,
foreign states and governments and to rescind treaties with nonrecognized governments.87 Which Hamilton was correct? According to David Gray Adler, it was Hamilton as Publius.88 Adler assumes that the Receive Ambassadors Clause is the source of the
Executive‘s recognition authority;89 but he argues, from postratification events during the Washington administration, that
this authority was intended to be ministerial in nature and does
not provide discretionary power for presidents to recognize, or to
refuse to recognize, new governments.90
ly small percentage of criminal cases [for offenses against the United States].‖).
84. THE FEDERALIST NO. 69, supra note 77, at 418–19 (Alexander Hamilton).
85. Id. at 414–21.
86. Id. at 419.
87. Pacificus No. 1, supra note 68, at 41.
88. Adler, supra note 4, at 134.
89. Id. at 133.
90. Id. at 134; see infra Part III.B.5.
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However, Hamilton as Publius did not assert that the Receive
Ambassadors Clause vested any recognition power in the President. According to Publius, the Clause ―is more a matter of dignity than of authority . . . [and] will be without consequence in the
administration of the government.‖91 Receiving ambassadors from
recognized governments was a ministerial function; but Publius
did not identify the branch of government that would have the
recognition power or the criteria that would be used for recognition decisions.92 The particular language and placement of the Receive Ambassadors Clause cast serious doubt on its being the
source of a plenary executive recognition power, whether discretionary or ministerial.
D. The Executive Vesting Clause
The final possible textual source for a plenary recognition power is the first section of the article on the presidency. Article II,
Section 1 of the Constitution states that ―[t]he executive Power
shall be vested in a President of the United States of America.‖93
Michael Ramsey and Saikrishna Prakash have impressively advanced a theory that the Executive Vesting Clause provides the
President with the entirety of the ―executive‖ power, except as
specifically limited by other provisions of the Constitution.94 This
theory posits that the transaction of foreign affairs is executive in
nature.95 Therefore, the President has sole control over the country‘s foreign relations except as specifically restricted by the Constitution (for example, only Congress can declare war, and treaties negotiated by the President must be approved by two-thirds
of the senators who are present).96 Because the recognition power
is an integral part of the conduct of foreign affairs and is not specifically restricted, advocates of this theory maintain that recognition is therefore a plenary power of the President.97
91. THE FEDERALIST NO. 69, supra note 77, at 419 (Alexander Hamilton).
92. See id.
93. U.S. CONST. art. II, § 1.
94. See Prakash & Ramsey, supra note 4, at 256–57.
95. See id. at 257.
96. For the full elaboration of this theory, see generally RAMSEY, supra note 4; Prakash & Ramsey, supra note 4.
97. RAMSEY, supra note 4, at 127–28, 328–29; Prakash & Ramsey, supra note 4, at
312–13. This theory has also been used to assert that the President has complete authority to administer the laws. See, e.g., STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE
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There is an obvious textual problem with relying on the Executive Vesting Clause as an independent source of presidential
power. The structure of Article II is the same as Article I. Section
1 of each Article identifies which department of government possesses the legislative power (Congress) and the executive power
(―a President of the United States of America‖).98 Following sections then proceed to enumerate the powers vested in those departments. No one suggests that there is a residuum of nonenumerated congressional power in the Legislative Vesting Clause;
why, then, should the Executive Vesting Clause be construed differently?
Advocates of the executive vesting theory point out that there
is a difference in the phrasing of the Legislative and Executive
Vesting Clauses—the former, but not the latter, refers to the
vesting of powers ―herein granted.‖99 The fallacy in this argument
is that the ―herein granted‖ phrase in Article I appears to be a redundancy with no legal significance. Suppose that this phrase
had been omitted from the Legislative Vesting Clause. Adapting
the executive vesting theory, one could then argue that Congress
would possess all legislative powers except those that are specifically restricted by the Constitution (such as the veto power and
the joinder of the President and Senate making treaties, which
are declared to be ―laws‖ in the Supremacy Clause).100 It would
therefore follow that the enumerated powers in Article I, Section
8 are illustrative only and that Congress possesses a general leg-
UNITARY EXECUTIVE 293 (2008); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541, 570, 581–82, 594–96 (1994); Steven G.
Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1207 (1992).
William Casto also relies on the Executive Vesting Clause as a source of presidential
power over foreign affairs, although he does not assert that this residual power is plenary.
See WILLIAM R. CASTO, FOREIGN AFFAIRS AND THE CONSTITUTION IN THE AGE OF FIGHTING
SAIL 61–66 (2006). In Casto‘s view, the Vesting Clause gives the President the power to
make initial decisions over foreign relations, but most (if not all) of those decisions can be
reversed by Congress. Id. at 180–91.
98. U.S. CONST. art. I, § 1; id. art. II, § 1, cl. 1.
99. Prakash & Ramsey, supra note 4, at 256–57. For textual arguments contrary to
the executive vesting theory, see Curtis A. Bradley & Martin S. Flaherty, Executive Power
Essentialism and Foreign Affairs, 102 MICH. L. REV. 545, 553–57 (2004); A. Michael
Froomkin, The Imperial Presidency’s New Vestments, 88 NW. U. L. REV. 1346, 1363 (1994);
Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 22
(1993).
100. U.S. CONST. art. I, § 7, cl. 2; id art. II, § 2, cl. 2; id. art. VI, cl. 2; see Myers v. United States, 272 U.S. 52, 230–31 (1926) (McReynolds, J., dissenting).
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islative power, equivalent to that of the British Parliament.101
This result would not be accepted by any serious student of constitutional law because it would defy the basic principle of delegated powers in the Constitution. The same textual and structural problem applies to the theory that the Executive Vesting
Clause contains unspecified plenary powers in the President.
In addition to this textual problem, scholars advocating the executive vesting theory draw supportive inferences from the Constitutional Convention and ratification debates.102 Like Adler,
however, they rely heavily on the postratification actions of the
Washington administration;103 but they draw diametrically opposite conclusions from Adler.104
The executive vesting theory has been rigorously challenged by
other scholars105 (and I have joined the ranks of its critics)106. The
recognition power provides a good test case for the validity or invalidity of this theory. Like the Receive Ambassadors Clause, reliance on the Executive Vesting Clause requires further investigation.
III. AN ORIGINALIST INQUIRY
Given the textual uncertainties over the source of an executive
recognition power, the remainder of this paper will focus on a
question never before examined in the literature: What evidence
is there that those who participated in the drafting and ratifying
of the Constitution understood that a plenary recognition power
was being vested in the President?
This is an originalist inquiry, and my approach is as follows.
The debates over any issue in the Constitutional Convention and
in the ratification process cannot be fully understood in the absence of historical context. If recognition and diplomatic relations
were matters of little or no experience or importance to the founding generation, one would not be surprised if there were sparse
101. See sources cited supra note 100.
102. See, e.g., RAMSEY, supra note 4, at 70–72.
103. See, e.g., id. at 74–81. During Washington‘s first term as president, Madison, Jefferson, and Hamilton would advocate variations of the Executive Vesting Clause theory. I
will address them in a future article on the Washington administration.
104. See supra notes 89–90 and accompanying text.
105. The most detailed critique is Bradley & Flaherty, supra note 99.
106. Reinstein, supra note 4, at 307–09.
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discussion over these issues. But the history that I present in the
next section of this paper shows that recognition and diplomatic
relations were central issues for Congress during the preconstitutional, Confederation period.107 That history also shows
that the founding generation was aware, from its own experience,
of how recognition decisions were made by the European powers,
what branches of government held the recognition power, how the
recognition power was related to the receipt of ambassadors and
establishment of diplomatic relations, and the approach of the
European powers towards doctrines of recognition in the law of
nations.108 The founders were also aware from these historical experiences that miscalculations in the use of the recognition power
could lead to war.109
Because recent historical experience had demonstrated the importance of the power of recognition, one would expect that this
would be the subject of considerable debate in the drafting and
ratifying of the Constitution. However, as shown in succeeding
parts of this paper, a thorough review of those debates reveals
that no issue concerning the recognition power was even raised.110
The Receive Ambassadors Clause was almost completely ignored,
and the Executive Vesting Clause was totally ignored.111 No one
suggested that either clause independently vested power in the
President.112 In striking contrast, the Anti-Federalists attacked,
and the Federalists defended, every power that the President was
thought to possess under the Constitution.113
Drawing broad conclusions from silence is treacherous. The
evidence presented below does refute any positive assertion that
those who participated in the construction of the Constitution
understood that the President was being vested with the recognition power. But it does not necessarily follow that they understood that this power was being deliberately withheld from the
President. After examining the founders‘ silence on the recognition power, I suggest a plausible alternative explanation for that
silence. If that explanation is correct, the most that can be con-
107.
108.
109.
110.
111.
112.
113.
See infra Part III.A.
See infra Part III.B.
See infra Part III.B.1.
See infra Part III.B.5.
See infra Part III.C–D.
See infra Part III.C–D.
See infra Part III.E.
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cluded from this study is that there is no originalist basis for the
proposition that a plenary recognition power was vested in the
President. That is, the founders left a void in the Constitution.
A. The Confederation Period
1. France
In March 1776, Congress sent one of its members, Silas Deane,
to France.114 He was disguised as a merchant, but his purpose was
to purchase military equipment.115 France was a natural destination.116 Its defeat in the Seven Years War had been a catastrophe:
France not only lost most of its empire in America but was humiliated and reduced to a second-rate power by Great Britain.117
Spurred by desires for revenge and restoration as a great power,
King Louis XVI agreed in May 1776—even before the Declaration
of Independence was issued—to a plan for supporting the American revolutionaries.118 That plan had been originally hatched by
the diplomat-playwright Caron de Beaumarchais‘ and then
adopted and advanced by the Foreign Minister, the Comte de
Vergennes.119 It called for secretly providing loans and military
supplies to the Americans and building up the French navy
should war with Britain occur, while maintaining a public position of neutrality.120 Deane had ―informal‖ meetings with Vergennes and Beaumarchais, who were receptive and put their plan
into effect.121 The King gave the first of many large loans to the
Americans, and Beaumarchais established a private firm as a
front for shipping large quantities of military equipment to
George Washington‘s army.122
114. BAILEY, supra note 4, at 27.
115. Id. at 27–28.
116. See id. at 26.
117. Id.
118. See id. at 29.
119. See id. Beaumarchais wrote The Marriage of Figaro, which Mozart transformed
into one of the sublime masterpieces of Western art.
120. See SAMUEL FLAGG BEMIS, THE DIPLOMACY OF THE AMERICAN REVOLUTION 25–28
(Indiana Univ. Press 1957) (1935) [hereinafter BEMIS, THE DIPLOMACY OF REVOLUTION];
HERRING, supra note 11, at 18.
121. See Letter from Silas Deane to the Comm. of Secret Correspondence (Aug. 18,
1776), in 1 THE DIPLOMATIC CORRESPONDENCE OF THE AMERICAN REVOLUTION 8, 10–15
(Jared Sparks ed., John C. Rives 1857) (1829).
122. E.g., BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 212; BEMIS, THE
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By September 1776, Congress developed ―a model treaty of amity and commerce to offer France.‖123 Benjamin Franklin, Arthur
Lee, and Deane were appointed as the commissioners.124 They
were instructed to obtain French recognition of American independence and to conclude the treaty.125 In October, their instructions were expanded to obtain recognition and treaties from other
European countries.126 Congress was initially unwilling to conclude a military alliance with France, but by the end of the year,
it gave that discretion to the commissioners.127
Vergennes met frequently with the commissioners, particularly
Franklin, who became something of a cult figure in Paris.128 But
until early 1778, France publicly proclaimed a position of neutrality.129 The French government refused to recognize American independence because it understood that this would be a cause of
war with Great Britain, for which it was not yet ready, and also
because members of the court, including Vergennes, were uneasy
about being formal allies with those who rebelled against a lawful
monarch.130 French policy remained nonrecognition, giving loans
to the United States, covertly supplying the revolutionaries with
military supplies, and building its own navy to the point of being
able to challenge Great Britain militarily.131 Vergennes also allowed American privateers to operate out of French ports132 and
announced that the British navy did not have the right to search
DIPLOMACY OF REVOLUTION, supra note 120, at 27; JONATHAN R. DULL, A DIPLOMATIC
HISTORY OF THE AMERICAN REVOLUTION 61 (1985).
123. DULL, supra note 122, at 55.
124. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 25.
125. 5 JOURNALS OF THE CONTINENTAL CONGRESS: 1774–1789, at 833 (Worthington
Chauncey Ford ed., 1906); see DULL, supra note 122, at 55–56; GOEBEL, supra note 10, at
81–82.
126. 6 JOURNALS OF THE CONTINENTAL CONGRESS: 1774–1789, supra note 125, at 884.
127. See DULL, supra note 122, at 53–54. In initially refusing a military alliance, the
Congress was not as naïve as it is sometimes portrayed. Cf. GORDON S. WOOD, EMPIRE OF
LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789–1815, at 191 (2009) (calling Congress‘s
―naiveté‖ in this instance ―astonishing‖). France had been the colonists‘ historic enemy,
there were concerns that France might try to reestablish its empire in North America, and
there was fear that a military alliance could cause future problems for the United States
(which it did). See HERRING, supra note 11, at 14–15.
128. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 49–50; DULL, supra note 122, at 92.
129. BRENDAN SIMMS, THREE VICTORIES AND A DEFEAT: THE RISE AND FALL OF THE
FIRST BRITISH EMPIRE, 1714–1783, at 614 (2007).
130. Id. at 601.
131. See DULL, supra note 122, at 60–62.
132. BAILEY, supra note 4, at 30; SIMMS, supra note 129, at 601.
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French merchant ships that were bound to neutral countries or to
French colonies.133 This made the French Caribbean islands of
Martinique, Guadeloupe, and Saint-Domingue (now Haiti) into
way stations for the delivery of contraband to the American army.134
Britain repeatedly protested Vergennes‘s meetings with Franklin and French support for the rebels, but these protests were
muted because Britain did not want France to enter the war.135
The American commissioners continued to press for French recognition and for treaties. The turning point came after the battle
of Saratoga in October 1777 (which the Americans won using
French military equipment).136 Britain reacted by attempting reconciliation.137 Parliament repealed the laws that had so antagonized the colonists, and Lord North sent the Carlisle Commission
to negotiate a settlement with the Americans.138 Vergennes was
alarmed at the possibility of a British-American reunification
and, on February 6, 1778, concluded with the American commissioners a treaty of amity and commerce,139 which constituted official recognition of the United States,140 and a ―defensive‖ military
alliance,141 in which France guaranteed the independence of the
United States.142 On March 20, Franklin and his colleagues were
133. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 24.
134. DULL, supra note 122, at 48.
135. Thus, the Ministry instructed the Royal Navy not to intercept French ships carrying contraband ―with too much vigor‖: the navy could intercept French vessels in American, but not in European, waters. SIMMS, supra note 129, at 598.
136. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 27.
137. See SIMMS, supra note 129, at 611.
138. See id.; BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 27.
139. Treaty of Amity and Commerce, U.S.–Fr., Feb. 6, 1778, 8 Stat. 12; SIMMS, supra
note 129, at 611–12.
140. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 29.
141. Treaty of Alliance, U.S.–Fr., Feb. 6, 1778, art. II, 8 Stat. 6, 8; EDWARD S. CORWIN,
FRENCH POLICY AND THE AMERICAN ALLIANCE OF 1778, 140–42 (1916). Actually, there was
no chance that the Carlisle Commission would succeed. The British offered autonomy and
an exemption from taxation to the Americans—everything but independence. What would
have been acceptable in 1775 was out of the question in 1778. Vergennes buttressed his
arguments to the King for French intervention into the war by claiming that a BritishAmerican coalition would threaten the French possessions in the West Indies. Id. Vergennes publicly announced the treaty of amity and commerce. Although the military alliance was supposed to be kept secret, Britain quickly learned about it from its spies in
Paris.
142. Treaty of Alliance, supra note 141, at art. II, 8 Stat. at 8; BAILEY, supra note 4, at
34. The military treaty was called a ―conditional and defensive alliance.‖ BEMIS, A
DIPLOMATIC HISTORY, supra note 11, at 29. France relinquished any future claims to territory that it held in North America before the end of the Seven Years War, but this implicitly allowed France to obtain new possessions. BAILEY, supra note 4, at 35. Article II of
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officially received by Louis XVI.143 Congress jubilantly ratified the
treaties on May 4.144 France then sent a Minister to the United
States (Gérard), and Congress reciprocated by naming Franklin
as the American Minister Plenipotentiary to the court of
France.145
France‘s actions constituted a causus belli. Britain recalled its
minister to France and expelled the French minister to England.146 Britain did not immediately declare war on France because its reconciliation efforts with the Americans were still underway.147 When those efforts failed, war between Britain and
France began in June 1778.148
2. The Netherlands
The second nation to recognize the United States prior to the
1783 Treaty of Peace was the Netherlands.149 Nominally an ally of
Great Britain, the Netherlands had remained neutral in the Seven Years War and professed neutrality in the American War of
Independence.150 There was considerable support in that country
for the American Revolution, although the stadholder (William
the treaty stated: ―The essential and direct end of the present defensive alliance is to
maintain effectually the liberty, sovereignty and independence absolute and unlimited, of
the said united States, as well in matters of gouvernement as of commerce.‖ Treaty of Alliance, supra note 141, at art. II, 8 Stat. at 8. The American and French guarantees in the
alliance were not reciprocal. Article XI guaranteed:
The United States to his Most Christian Majesty, the present possessions of
the crown of France in America, as well as those which it may acquire by the
future treaty of peace; And his Most Christian Majesty guarantees on his
part to the United States, their liberty, sovereignty and independence, absolute and unlimited . . . and also their possessions . . . .
Id. at art. XI, 8 Stat. at 10. The limited American guarantee in Article XI would create major potential problems for the United States following the French Revolution.
143. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 65.
144. See id. at 67–68.
145. DULL, supra note 122, at 100–01; see BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 67–68.
146. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 31; DULL, supra note
122, at 48.
147. DULL, supra note 122, at 99–100.
148. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 28–31. Vergennes later gave a
succinct explanation for France‘s rationale for the war: it ―was the significant weakening
of England caused by taking away a third of her empire.‖ ANDREW STOCKLEY, BRITAIN AND
FRANCE AT THE BIRTH OF AMERICA: THE EUROPEAN POWERS AND THE PEACE NEGOTIATIONS
OF 1782–1783, at 131–32 (2001).
149. See FRIEDRICH EDLER, THE DUTCH REPUBLIC AND THE AMERICAN REVOLUTION
231–32 (1911).
150. See DULL, supra note 122, at 20, 69.
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III) supported Britain.151 Dutch merchants saw the revolution as
presenting a potential source of huge profits in selling contraband
to the Americans.152 The Dutch trade became a major source of
arms and powder for the American army.153 The merchants
turned the Dutch island colony of St. Eustatius into an enormous
supermarket for arms smuggling.154 When the British protested,
the States General passed a law prohibiting the arms trade; but
nothing was done to enforce the law.155 The Dutch also provided
sanctuary for American privateers that attacked British shipping156 and provided France and Spain with naval supplies, such
as timber.157
The American commissioners sought a treaty of friendship and
commerce with the Netherlands (through a private intermediary,
Charles Dumas), but this overture was ignored because the Dutch
wanted to avoid war with Britain.158 In 1780, one of the commissioners, John Adams, went to the Netherlands to obtain large
loans to support the war effort, explaining to Franklin that he
wanted to make the United States less dependent on France.159
Adams arrived in Amsterdam on August 10, 1780.160 The Dutch
bankers told him that they could not provide any loans until the
States General recognized American independence.161
By this time, British anger at Dutch duplicity reached the boiling point; Britain declared war on the Netherlands on December
20, 1780.162 The pretext for this action was a bizarre incident. William Lee and a Dutch representative had taken it upon them-
151. Id. at 20, 67. Professor Dull suggests that political opposition to the stadholder
helped increase support for the United States. Id. at 67.
152. See id. at 124.
153. See id. at 48.
154. Id.
155. Id.; SIMMS, supra note 129, at 644 (―[T]he Dutch [were] the most flagrant covert
traders with the American[s] . . . .‖).
156. SIMMS, supra note 129, at 644. For a thorough account of the British-DutchAmerican relations during the War of Independence, see generally BEMIS, THE DIPLOMACY
OF REVOLUTION, supra note 120, at 117–63.
157. DULL, supra note 122, at 124.
158. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 156–57.
159. JAMES H. HUTSON, JOHN ADAMS AND THE DIPLOMACY OF THE AMERICAN
REVOLUTION 72–74 (1980).
160. Id. at 75.
161. Id. at 78.
162. See BAILEY, supra note 4, at 41; BEMIS, THE DIPLOMACY OF REVOLUTION, supra
note 120, at 160–61.
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selves, without any authority from their governments, to draft a
commercial treaty.163 When Congress later appointed Henry Laurens as minister-designate to the Hague,164 for some unknown
reason he carried Lee‘s ―treaty‖ with him, which the British found
when his ship was captured on September 3, 1780.165 Although
the Dutch government strenuously repudiated the validity of this
document, the British claimed that it was proof that the Netherlands had secretly recognized the United States and gave this as
one of the reasons for its declaration of war.166
In early 1781, Adams received authority from Congress to negotiate a treaty of amity and commerce with the Netherlands.167
This proposal was rejected by the States General.168 Adams submitted a memorial for recognition to the States General, but it
was not received.169 He then began a propaganda campaign
throughout the Netherlands for American recognition.170 This was
initially unsuccessful in part because Vergennes opposed Dutch
recognition of the United States, preferring the Netherlands to be
neutral and dependent on France.171 The Dutch still proclaimed
their neutrality and tried, but failed, to obtain a negotiated peace
with Britain.172
The continuation of the war by Great Britain provoked more
support for the American cause.173 The Netherlands had a federal
system of government that resembled that of the United States.174
On March 28, 1782, eight days after the fall of Lord North‘s ministry,175 Holland voted to recognize the United States.176 This was
followed by recognition decisions of the other six states; on April
163. DULL, supra note 122, at 102.
164. HUTSON, supra note 159, at 78.
165. Id. at 79.
166. The reasons given were (1) the Dutch refusal to honor its alliance with Great Britain, (2) secret military assistance to rebels, (3) alleged attempts to raise armies against
Britain in the East Indies, and (4) a ―secret treaty with our rebel subjects.‖ BEMIS, THE
DIPLOMACY OF REVOLUTION, supra note 120, at 160–61.
167. HUTSON, supra note 159, at 87.
168. See id.
169. See id. at 87.
170. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 168.
171. Id. at 168–69.
172. See HUTSON, supra note 159, at 105–06.
173. See DULL, supra note 122, at 67.
174. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 117.
175. Id. at 191.
176. HUTSON, supra note 159, at 108.
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19, the States General recognized the United States as a sovereign nation.177 The States General‘s declaration of recognition instructed the stadholder to formally receive Adams as the Minister
Plenipotentiary of the United States, and Adams thereupon became the second accredited American diplomatic envoy abroad.178
A treaty of commerce between the two countries was concluded on
October 8, 1782;179 and the Netherlands sent its first Minister to
the United States on June 23, 1783.180
3. Spain
Spain was a logical candidate for American recognition and a
military alliance because it had a defensive alliance with France
and similar motivations for revenge against Great Britain.181
Spain‘s territorial objectives were to regain Gibraltar and possibly to obtain Florida.182 When Louis XVI provided the Americans
with the first large loan in May 1776, Charles III promptly provided a matching loan.183 The Spanish court welcomed the revolution because it thought that both Great Britain and the colonies
would be weakened.184 Spain did not support American independence because that would have been a successful rebellion against
a monarch and could have kindled a revolutionary movement in
its own colonies in the Americas.185 Spain also had serious disputes with the colonies over boundaries and navigation rights on
the Mississippi.186 In short, the Spanish court hoped that the outcome of the war would be a bloodied Britain, territorial conquests
for Spain, and a failed revolution in America. Thus, Charles III
decided that he would not recognize American independence or
enter into any treaty or alliance with the United States.187
177.
178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
Id.
GOEBEL, supra note 10, at 95.
Treaty of Amity and Commerce, U.S.-Neth., Oct. 8, 1782, 8 Stat. 32.
BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 171.
See id. at 83–84.
See id. at 86–87.
Id. at 28.
Id. at 41.
See id.; SIMMS, supra note 129, at 601.
BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 94.
DULL, supra note 122, at 109; GOEBEL, supra note 122, at 91.
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In February 1777, Arthur Lee was sent to Spain to seek recognition and treaties.188 Lee was rebuffed but promised secret military aid.189 When France recognized the United States in 1778,
Vergennes tried to convince the Spanish ministry to join the military alliance; but Spain again refused to enter into any alliance
with the United States.190 Spain entered the war as an ally of
France following the Convention of Aranjuez of April 12, 1779, in
which France pledged to support Spanish territorial ambitions.191
Spain engaged in some military activities against Britain, but
it continued to reject any formal relationship with the United
States and provided little direct military support to the Americans.192 A Spanish ―observer‖ was sent to the United States, who
was treated ceremonially like a minister, but this observer could
not perform any official functions and avoided any action that
would imply recognition of American independence.193 In late
1779, John Jay was sent to Madrid as a diplomatic envoy in an
attempt to obtain recognition and a military alliance and to resolve the disputes over boundaries and navigation rights on the
Mississippi.194 The ministry negotiated with him informally, but
he was never officially received in the two-and-one-half fruitless
years that he spent in Madrid.195 Instead, Jay was treated as a
private person by the Spanish court so as to not imply recognition
of the United States.196
Jay attributed his failures to congressional insistence that the
United States would not give up its claims to navigation rights on
the Mississippi.197 In early 1781, Congress passed a resolution authorizing Jay to acknowledge exclusive Spanish navigation rights
on the river in exchange for recognition and a military alliance.198
Spain rejected this proposal.199
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 115, at 52–53.
Id. at 53.
DULL, supra note 122, at 90–91.
BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 79–80, 86–87.
Id. at 82–83.
Id. at 88–89.
Id. at 101.
See id. at 104.
Id. at 216.
Id. at 107.
Id.
Id. at 107–08.
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When the war ended, Spanish policy towards the United States
turned hostile. It refused to enter into a commercial treaty,
claimed territory that Britain recognized as belonging to the
United States in the Treaty of Peace, closed the ports of Havana
and New Orleans to American products, and denied American
ships access to the Mississippi.200 In July 1784, with relations between the two countries disintegrating, Charles III decided that
the time had come to recognize the United States and to attempt
to resolve all outstanding issues. He sent Diego de Gardoqui as a
formal diplomatic envoy to the United States (at the grade of
chargé d’affaires), with power to deal not only with commercial
issues but also to settle the boundary question and navigation
rights on the Mississippi.201 The King then formally received William Carmichael as the chargé d’affaires of the United States.202
John Jay, then the Secretary for Foreign Affairs, asked Congress for authority to negotiate a treaty with Gardoqui in which
the United States would acknowledge Spain‘s exclusive navigation rights to the Mississippi for twenty-five or thirty years.203 In
1786, following a debate so heated that it provoked the first
southern threats of secession, Congress voted seven states to five,
on purely sectional lines, to support Jay‘s request as the price for
negotiating a treaty with Spain that was favorable to northern
commercial interests.204 However, nine votes were necessary for
treaty ratification, the Jay-Gardoqui negotiations failed,205 and
the United States and Spain did not resolve their disputes until
Pinckney‘s Treaty was concluded in 1795,206 which, among other
things, settled the boundary dispute in America‘s favor and guaranteed American access to the Mississippi River.207
200.
201.
HERRING, supra note 11, at 38, 46.
SAMUEL FLAGG BEMIS, PINCKNEY‘S TREATY 71 (1926) [hereinafter BEMIS,
PINCKNEY‘S TREATY].
202. Id. at 189. Carmichael had accompanied Jay and, after Jay returned to the United
States, remained in Madrid as an unofficial representative of the United States. Id.
203. Id. at 79, 87.
204. Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties—The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1, 66–67 (1979); see HERRING, supra note 11, at 47–48.
205. BAILEY, supra note 4, at 62; see also MARKS, supra note 46, at 26–35.
206. Treaty of Friendship, Limits and Navigation, U.S.-Spain, Oct. 27, 1795, 8 Stat.
138. For an excellent account, see BEMIS, PINCKNEY‘S TREATY, supra note 201.
207. See Treaty of Friendship, Limits and Navigation, supra note 206, at arts. II, III, 8
Stat. at 138–40 (setting boundaries); id. at arts. IV, XXII, 8 Stat. at 140, 150–52 (guaranteeing United States citizens free access to the entire Mississippi River).
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4. Great Britain
General Cornwallis surrendered to the American and French
forces at Yorktown in October 1781.208 Opposition in Britain to
continuing the war became so great that Lord North and the entire Ministry resigned following the passage of a Parliamentary
resolution repudiating the Ministry and declaring as enemies of
the country anyone who would support an offensive war against
America.209 In the following peace negotiations, the American
commissioners, led by Franklin, initially demanded that Britain
recognize the United States as a precondition for further negotiations.210 The British commissioners refused, and the Americans
backed off.211 Preliminary Articles of Peace were signed on November 30, 1782.212 The first article was British recognition of
American independence,213 and this effectively ended the fighting
in America.214 The terms of the preliminary articles were so generous to the United States215 that in February 1783, the House of
Commons, by a narrow majority, voted to censure the agreement.216 But the government did not withdraw it, and George III
announced that it was in effect on April 9.217 The Definitive Treaty of Peace was signed in Paris on September 3,218 and the treaty
208. SIMMS, supra note 129, at 654.
209. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 191.
210. Id. at 209.
211. Id. at 209, 212–13.
212. Provisional Articles, U.S.-Gr. Brit., Nov. 30, 1782, 8 Stat. 54.
213. Id. at art. I, 8 Stat. 55 (―His Britannic Majesty acknowledges the said United
States, viz. [the thirteen states] to be free, sovereign and independent States; that he
treats with them as such; and for himself, his heirs and successors, relinquishes all claims
of the gouvernment, propriety and territorial rights of the same, and every part thereof.‖).
214. France and Spain signed separate preliminary articles with Britain on January
20, 1783, and that ended the fighting among the European powers. DULL, supra note 122,
at 158. A formal American-British armistice was signed the same day. Armistice, U.S.-Gr.
Brit., Jan. 20, 1783, 8 Stat. 58.
215. For details on the negotiations, see HERRING, supra note 11, at 30–34; BEMIS, THE
DIPLOMACY OF REVOLUTION, supra note 120, at 200–38.
216. DULL, supra note 122, at 159.
217. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 71.
218. Definitive Treaty of Peace, U.S.-Gr. Brit., Sept. 3, 1783, 8 Stat. 80.
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was ratified in 1784.219 John Adams was received by George III as
the Minister Plenipotentiary of the United States in June 1785.220
Americans were soon disabused of the hope that the peace treaty would bring normal relations with Britain. Parliament passed
a law giving ―the King in Council temporary authority to regulate
Anglo-American commerce.‖221 The Order in Council of July 2,
1783, excluded all American ships from the carrying trade to the
British West Indies, and the order was reaffirmed in 1784.222 The
New England fishing and shipping industries collapsed.223 Britain
also tried to devastate American manufacturing by flooding the
American market and prohibiting the export of anything that
would help American manufacturers.224 Adams‘s protests were ignored.225
Adams requested that Britain reciprocate his appointment by
sending a minister to the United States. Adams later claimed
that the King agreed and then reneged.226 Instead of sending a
minister, Britain insultingly sent a consul.227 Nor was Britain
willing to enter into a commercial treaty with the United
States,228 and, to stick the knife in deeper, Britain concluded a
commercial treaty with its archenemy France in 1787.229
219. See Proclamation of Congress Respecting the Definitive Treaty (Jan. 14, 1784), in
6 THE REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 755–57
(Francis Wharton ed. 1888) (ratified by Congress on Jan. 14, 1784); id. at 757–58 (ratified
by King George III on Apr. 9, 1784).
220. See HERRING, supra note 11, at 38.
221. CHARLES R. RITCHESON, AFTERMATH OF REVOLUTION: BRITISH POLICY TOWARD
THE UNITED STATES 1783–1795, at 6 (1969).
222. Id. at 6, 12.
223. HERRING, supra note 11, at 37.
224. Id.
225. See MARKS, supra note 46, at 66–67; RITCHESON, supra note 221, at 26–27.
226. See Opinion of Vice President Adams (Aug. 29, 1790), reprinted in 17 THE PAPERS
OF THOMAS JEFFERSON 137, 139 (Julian P. Boyd ed., 1965). Because Britain had refused to
send a minister to the United States, Washington left vacant the position of U.S. minister
to London. See Letter from Thomas Jefferson to Gouverneur Morris (Aug. 12, 1790), in 17
THE PAPERS OF THOMAS JEFFERSON, supra, at 127 (telling Morris that an exchange of ministers could occur only if unequivocally requested by Great Britain). For the sake of brevity, subsequent citations to volumes of The Papers of Thomas Jefferson edited by Julian P.
Boyd omit editor and publication information. For those volumes that contain an editor
other than Julian P. Boyd, the editor‘s name and year of publication have been reprinted
in full.
227. RITCHESON, supra note 221, at 40.
228. See id. at 98.
229. Id. at 30.
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British-American diplomacy during the Confederation period
consisted of repeated claims by each side that the other violated
the Treaty of Peace: the British by maintaining military posts in
the western territories,230 occupying a swath of northern American territory, inciting the Indian tribes to violence against American settlers and refusing to make compensation for the ―abduction‖ of slaves;231 and the Americans by the states blocking the
payment of debts owed to British merchants and by massive retaliation (especially by the southern states) against Loyalists.232
Repeated requests for a British minister to the United States
were met with evasive answers, and none was sent during the entire Confederation period.233 Full diplomatic relations were first
established during the Washington administration.234
230. On April 8, 1783, the day before he announced the Treaty of Peace to be in effect,
George III issued a secret order to the Governor-General of Canada to retain the military
posts. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 71.
231. At the last minute of the preliminary negotiations, Henry Laurens (of the Netherlands ―treaty‖ fame) and Richard Oswald (representing Great Britain) agreed to a provision prohibiting the carrying away of slave property by evacuating British armies. They
agreed to this easily because both were slave traders. THOMAS FLEMING, THE PERILS OF
PEACE 237 (2007). When Secretary of State Jefferson later complained to the newly appointed British Minister that this provision of the treaty had been violated, and that the
United States was entitled to compensation, the response was that Britain did not violate
this provision because the black people who left with the Royal Navy (and their families)
had been freed for fighting with the British army. See Editor‘s Note to Letter from Thomas
Jefferson to George Hammond (Dec. 15, 1791), in 22 THE PAPERS OF THOMAS JEFFERSON
411 (Charles T. Cullen et al. eds., 1986). Hamilton told the British Minister that he understood Britain‘s position and thought that this was a minor issue for the United States.
Conversation with George Hammond, in 10 THE PAPERS OF ALEXANDER HAMILTON, supra
note 68, at 493, 493–96.
232. RITCHESON, supra note 221, at 49, 63. After a British Minister to the United
States (George Hammond) finally arrived in late 1791, he and Secretary of State Jefferson
exchanged detailed bills of particulars showing how the other country had violated the
treaty and their own country was blameless. See Letter from George Hammond to Thomas
Jefferson (Mar. 5, 1792), in 23 THE PAPERS OF THOMAS JEFFERSON, supra note 231, at 196,
196–213; Letter from Thomas Jefferson to George Hammond (May 29, 1792), in 23 THE
PAPERS OF THOMAS JEFFERSON, supra note 231, at 551, 551–601.
233. BAILEY, supra note 4, at 54.
234. In late 1789, the British Ministry sent an ―informal‖ representative (George
Beckwith) to the United States, who had inconclusive discussions with Secretary of the
Treasury Hamilton. See STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM:
THE EARLY AMERICAN REPUBLIC, 1788–1800, at 212 (1993). Britain continued to be evasive as to whether it would send a Minister. Relations between the two countries continued to deteriorate, to the point that on February 14, 1791, President Washington gave a
hard-line message to Congress, which blamed Britain for not negotiating an end to violations of the Treaty of Peace, for not agreeing to a commercial treaty, and for not sending a
Minister. RITCHESON, supra note 221, at 107; The President to the Senate (Feb. 14, 1791),
in 18 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 305, 305–06. In Congress,
there was a strong move, led by Madison, to impose discriminatory trade restrictions on
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5. Other Countries
Before independence, the United States had secured recognition from and treaties with only two countries—France and the
Netherlands. The United States was unable to replicate this success with any other European nation.235 This was not for lack of
trying. In 1777, Congress dispatched diplomatic envoys to Prussia, Austria, and Tuscany, three countries that were notoriously
anti-British, to obtain recognition and treaties of amity and commerce. They failed: no recognition, no treaty.236
In 1780, Congress sent Francis Dana to Russia.237 Catherine II
had, that same year, sponsored a declaration of neutral rights
that barred Britain from intercepting any Russian commerce to
America.238 She then organized the League of Armed Neutrality,
which was joined by Sweden, Denmark, Austria, Prussia, Portugal, and the Kingdom of Naples.239 This coalition ensured continued
supplies for America and meant that Britain was now opposed by
practically all of Europe.240 But, Catherine refused to receive Dana or to have any official relations with the United States.241 He
stayed in Russia for two years, accomplishing nothing.242
John Adams attributed these failures to the reluctance of European states to offend Great Britain.243 There is some truth to
Britain. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 90–91. To head off a trade,
and perhaps war, Britain appointed George Hammond as Minister to the United States,
and he arrived in October 1791. See RITCHESON, supra note 221, at 140–41, 231. Hammond‘s negotiations with Secretary of State Jefferson were not successful, partly because
of Hammond‘s limited authority and because of Hamilton‘s propensity to meddle and undermine Jefferson. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 91; ELKINS &
MCKITRICK, supra, at 244–56. The United States and Great Britain finally concluded a
treaty of amity and commerce in the controversial Jay Treaty. Treaty of Amity, Commerce
and Navigation, U.S.-Gr. Brit., Nov. 19, 1794, 8 Stat. 116.
235. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 113.
236. GOEBEL, supra note 10, at 88–89, 93.
237. DULL, supra note 122, at 129–30.
238. See id. at 129.
239. Id.
240. See HERRING, supra note 11, at 23.
241. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 44.
242. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 164–65. At least Dana
was allowed to reside in Russia. Even that courtesy was denied to the American envoys to
Austria and Tuscany. GOEBEL, supra note 10, at 93.
243. Letter from John Adams to Robert Livingston, Sec. for Foreign Affairs (Sept. 17,
1782), in 13 PAPERS OF JOHN ADAMS 475, 476 (Gregg L. Lint et al. eds., 2006) (―A Doctrine
prevails, that an Acknowledgement of the Independence of America is an Hostility against
England, and consequently a Breach of Neutrality. . . . Sending or receiving Ambassadors;
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that claim;244 but it cannot be the complete story in light of the
large number of countries that greatly offended Britain by forming the League of Armed Neutrality. The major reason for America‘s diplomatic isolation was that, outside of France and the
Netherlands, there was very little support for the American War
of Independence; most European monarchs viewed this rebellion
as a threat to their sovereign rights to rule.245 As with Spain,
these monarchies would have liked Britain to be weakened and
the revolution to fail.246
Following independence, Congress renewed its efforts to engage Europe.247 It commissioned Franklin to obtain a treaty of amity and commerce with Sweden,248 and this effort was successful.249
Congress then commissioned Adams, Jefferson, and Franklin, for
a term of two years, to obtain treaties of amity and commerce
with sixteen named countries (the commissioners would later add
two more) that had diplomatic envoys in Paris.250 Jefferson
thought that the most important objective was to obtain favorable
treaties with the countries holding possessions in the valuable
West Indies market—Great Britain, Spain, Portugal, and
France.251 The British and Spanish refusals are described above.
entering into peaceful Commercial Treaties, or at least negotiating at Philadelphia the
Rights of Neutral Nations, is not taking Arms against Great Britain. But if the Acknowledgement of our Independence is an Hostility, a Denial of it is so too . . . .‖).
244. When Arthur Lee went to Berlin to obtain recognition from Prussia, Frederick told
him that his treaty with Great Britain prohibited him from doing anything that could be
seen as recognizing American independence. GOEBEL, supra note 10, at 88–89.
245. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 113–15; see also
MARKS, supra note 46, at 97 (―Americans after 1783 became increasingly aware of their
country‘s position as a fledgling republic in the midst of hostile monarchs. The looked
about and could not be sure of a single ally among the world powers. Indeed it appeared
that the European nations, though divided on most issues, might find a cause for unity in
their opposition to the United States.‖). For the change in French policy following American independence, see id. at 106–11.
246. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 41–42, 113.
247. For details on the negotiations, see HERRING, supra note 11, at 30–34; BEMIS, THE
DIPLOMACY OF REVOLUTION, supra note 120, at 215–27.
248. 23 JOURNALS OF THE CONTINENTAL CONGRESS: 1774–1789, at 621 (Gailliard Hunt
ed., 1914).
249. Treaty of Amity and Commerce with Sweden, U.S.-Swed., Apr. 3, 1783, 8 Stat. 60.
250. 26 JOURNALS OF THE CONTINENTAL CONGRESS: 1774–1789, supra note 248, at 356–
57; see also Commission for Negotiating Treaties of Amity and Commerce (May 16, 1784),
reprinted in 7 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 262, 262–63. The
nations specified by Congress were Russia, Austria, Prussia, Denmark, Saxony, Hamburg,
Great Britain, Spain, Portugal, Genoa, Tuscany, Rome, Naples, Venice, Sardinia, and
Turkey. Instructions to Commissioners for Negotiating Treaties of Amity and Commerce,
reprinted in 7 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 266, 267. The commissioners added France and Morocco. Id. at 269.
251. See Letter from Thomas Jefferson to James Monroe (Feb. 6, 1785), in 7 The
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A new commercial treaty with France was needed because the
United States had given up its trading rights in the West Indies
in the 1778 treaty,252 but Vergennes rejected a new treaty because
of opposition by French merchants.253 After two years of painstaking efforts, Adams and Jefferson254 were able to conclude treaties
with only two countries—Prussia and Morocco—which, along
with Sweden, were ―peripheral powers with little overseas
trade.‖255 Nothing except an occasional insult was forthcoming
from the rest of the countries.256
There were two reasons for these post-independence diplomatic
failures. First, the United States had little to offer. American officials, particularly Madison and Jefferson, continually overestimated the importance of U.S. commerce as a tool of international diplomacy.257 Three-quarters of all American trade (includ-
PAPERS OF THOMAS JEFFERSON, supra note 226, at 637, 638.
252. See Letter from Thomas Jefferson to James Monroe (June 17, 1785), in 8 The
PAPERS OF THOMAS JEFFERSON, supra note 226, at 227, 230–32.
253. See Jefferson‘s Report on Conversations with Vergennes (Dec. 1785), in 9 THE
PAPERS OF THOMAS JEFFERSON, supra note 226, at 139, 139–46.
254. The commission was reduced to Adams and Jefferson when Franklin returned to
the United States and was succeeded by Jefferson as Minister Plenipotentiary to France.
DAVID MCCULLOUGH, JOHN ADAMS 328–29 (2001).
255. WOOD, supra note 127, at 192. For the treaties with Prussia and Morocco, see
Treaty of Amity and Commerce, U.S.-Prussia, July–Sept. 1985, 8 Stat. 84; Treaty of Peace
and Friendship, U.S.-Morocco, Jan. 1787, 8 Stat. 100. The commissioners came closest
with Portugal. The Portuguese minister to Britain told Adams that the Queen wanted to
conclude a treaty of amity and commerce and was willing to exchange diplomats. Letter
from John Adams to Thomas Jefferson (Nov. 5, 1785), in 9 THE PAPERS OF THOMAS
JEFFERSON, supra note 226, at 18, 21–22. Adams and Jefferson negotiated a treaty with
the Portuguese commissioner (Del Pinto), but it was never ratified by the Queen. Letter
from American Commissioners to John Jay (Apr. 25, 1786), in 9 THE PAPERS OF THOMAS
JEFFERSON, supra note 226, at 406, 407; see also Editorial Note to Negotiations for a Treaty of Amity and Commerce with Portugal, in 9 THE PAPERS OF THOMAS JEFFERSON, supra
note 226, at 410, 411. Jefferson and Adams signed, but Del Pinto did not, claiming that he
had authority only to negotiate. See Letter from Thomas Jefferson to William Carmichael
(May 5, 1786), in 9 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 448, 448. On
Portugal‘s failure to ratify, see Letter from William Carmichael to Thomas Jefferson (Dec.
25, 1786), in 10 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 606, 607.
256. The commissioners left negotiations with Russia to Francis Dana, whom Congress
sent back as the Minister to the court of Catherine II. She again refused to recognize the
United States, and he was recalled. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 44–
45 (noting also that Russia would not recognize the United States until 1809).
As the eternal optimist (except where Great Britain was concerned), Jefferson wanted to
continue this mission beyond its two-year term but Jay advised him that Congress declined because it was concentrating on domestic issues. Letter from John Jay to Thomas
Jefferson (Oct. 27, 1786), in 10 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at
488, 488.
257. This is one of the themes of Gordon Wood‘s outstanding book, Empire of Liberty,
supra note 127. For more on this point, see BEMIS, THE DIPLOMACY OF REVOLUTION, supra
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ing ninety percent of all imports) was with Great Britain, which
left very little for the rest of the world.258 Second, the monarchs of
Europe were not reconciled to the success of the American Revolution.259 Viewing the United States as weak, they expected (and
hoped) that it would collapse.260 The Anglophobic Jefferson
blamed this widespread perception of American weakness on
British press publications, circulated throughout Europe, which
constantly portrayed the United States as beset by ―anarchy, tumult, and civil war.‖261 However, the fact is that the United States
was weak because Congress was weak; and the Europeans knew
it.262 Congress defaulted for six straight years on paying the interest or principal of its debt to France;263 it could not secure the territory of the United States against Great Britain or Spain;264 and
it was unable to prevent the states from violating the Treaty of
Peace.265 The European view of congressional weakness was exemplified when a British commercial treaty negotiator taunted
Jefferson and Adams by asking whether they really had the power to bind the United States.266 Were they, he asked, authorized
by each state, given that experience showed that Congress had
little power and could be thwarted by the action of a single
state?267
note 120, at 30.
258. JERALD A. COMBS, THE JAY TREATY 40 (1970); WOOD, supra note 127, at 191–93.
And, as Jefferson and Madison should have realized, but found out the hard way, the
United States had little leverage on Great Britain because only one-sixth of British trade
was with America. Id. at 193. A trade war with Britain was bound to inflict disproportionate harm on the United States, which is what happened during the later JeffersonMadison embargoes.
259. See HERRING, supra note 11, at 35.
260. Id.
261. See Letter from Thomas Jefferson to James Madison (Sept. 1, 1785), in 8 THE
PAPERS OF THOMAS JEFFERSON, supra note 226, at 460, 460–61.
262. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 68; RITCHESON,
supra note 221, at 39.
263. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 82.
264. See id. at 70, 73.
265. David M. Golove & Danial J. Hulsebosch, A Civilized Nation: The Early American
Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U.
L. REV. 932, 941 (2010).
266. Dorset to the American Commissioners (Mar. 26, 1785), in 8 THE PAPERS OF
THOMAS JEFFERSON, supra note 226, at 55, 55–56.
267. Id. After some delay, Jefferson responded with the remarkable assertion that
Congress could bind the states on all matters of foreign commerce through the treaty power. Letter from Thomas Jefferson to David Hartley (Sept. 5, 1785), in 8 THE PAPERS OF
THOMAS JEFFERSON, supra note 226, at 481, 484. Jefferson made the same argument to an
incredulous James Monroe, see Letter from James Monroe to Thomas Jefferson (Apr. 12,
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B. Lessons from the Confederation Period
1. The Importance and Dangers of Recognition
The history recounted above demonstrates the exceptional importance that Congress placed on recognition during the preconstitutional period. Recognition was of course critical during
the War of Independence268—from France in order to obtain active
military support (and not just the clandestine provision of contraband),269 and from the Netherlands to obtain the loans necessary
to fund independence.270 However, even after the Treaty of Peace,
Congress committed to a substantial (although largely unsuccessful) effort to secure recognition from European nations because
that meant acceptance into the community of nations and was the
necessary prerequisite for establishing diplomatic relations and
obtaining treaties of friendship and commerce.271
1785), in 8 THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 75, 76–77; Letter from
Thomas Jefferson to James Monroe (June 17, 1785), in 8 THE PAPERS OF THOMAS
JEFFERSON, supra note 226, at 227, 230–31, at that very time that Monroe was leading the
(unsuccessful) effort to amend the Articles to give Congress the power to regulate foreign
commerce. See MARKS, supra note 46, at 86–88.
Even more remarkably, Jefferson caused to be published in a French encyclopedia the
amazing proposition that Congress could, by military force if necessary, coerce states into
obeying its laws and treaties. Answers to Démeunier‘s First Queries (Jan. 24, 1786), in 10
THE PAPERS OF THOMAS JEFFERSON, supra note 226, at 11, 19 (―It has been often said that
the decisions of Congress are impotent, because the Confederation provides no compulsory
power. But when two or more nations enter into a compact, it is not usual for them to say
what shall be done to the party who infringes it. Decency forbids this. And it is as unnecessary as indecent, because the right of compulsion naturally results to the party injured
by the breach. When any one state in the American Union refuses obedience to the Confederation by which they have bound themselves, the rest have a natural right to compel
them to obedience. Congress would probably exercise long patience before they would recur to force, but if the case ultimately required it, they would use that recurrence.‖).
268. This lesson was fresh in the minds of the Confederate government during the Civil
War. FRANK LAWRENCE OWSLEY, KING COTTON DIPLOMACY: FOREIGN RELATIONS OF THE
CONFEDERATE STATES OF AMERICA xvi (2d ed. rev. 1959). On its extraordinary efforts to
obtain recognition from Great Britain and France, and on the extraordinary efforts of the
Lincoln administration to prevent such recognition, see LYNN M. CASE & WARREN F.
SPENCER, THE UNITED STATES AND FRANCE: CIVIL WAR DIPLOMACY 129 (1970); OWSLEY,
supra, at 1, 547.
269. See supra Part III.A. In contrast, Spain, which refused to recognize the United
States, did not provide active military support for the revolution. Instead, Spain‘s military
efforts against Great Britain were concentrated on seizing Gibraltar and obtaining Florida. See supra Part III.A.3. These efforts indirectly helped the Americans by diverting portions of the Royal Navy, but they do not compare with France‘s direct (and decisive) actions at Yorktown. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 31.
270. See supra Part III.A.2.
271. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 44.
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The experience during the Confederation period also showed
the dangers inherent in the recognition power. France delayed recognizing the United States because it understood that such an
action would be the cause of war with Great Britain.272 Britain in
turn used the Americans‘ secret ―treaty‖ with the Netherlands as
a cause for declaring war against that country.273 This was almost
certainly pretextual; but, to be effective, pretexts must have some
underlying basis—and the basis here was the connection between
recognition and war. In short, a miscalculation in the use of the
recognition power could embroil a country into war.
2. Recognition and the Exchange of Diplomats
The experience of the United States during the Confederation
period also shows that recognition was considered distinct from
the sending or receiving of diplomats. France recognized the
United States by treaty and then received and sent accredited
ministers.274 The Netherlands recognized the United States by
resolution of the States General, and the mutual exchange of accredited ministers followed.275 Charles III of Spain decided to recognize the United States after the Treaty of Peace and then sent
a diplomat to the United States and formally received an American chargé d’affaires in Madrid.276 Great Britain recognized the
United States in the Treaty of Peace of 1783, and George III received John Adams as the accredited American minister in
1785.277 Great Britain‘s actions also showed that the exchange of
ambassadors was not automatically tied to recognition: despite
repeated requests from the United States, Britain refused to send
a Minister for eight years following the Treaty of Peace.278
272. See supra notes 128–30 and accompanying text.
273. See supra notes 162–66 and accompanying text.
274. See supra notes 139–45 and accompanying text.
275. See supra notes 177–78 and accompanying text.
276. See supra notes 200–02 and accompanying text.
277. See supra notes 218–20 and accompanying text.
278. See supra note 233 and accompanying text. The three other countries (Sweden,
Prussia and Tuscany) that recognized the United States by concluding treaties of amity
and commerce did not send or receive accredited diplomats. However, this appears to have
been with the agreement of all parties. See supra notes 247–55 and accompanying text.
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3. How Recognition Was Effected
Five countries recognized the United States during the Confederation period through treaties.279 Spain‘s recognition was done
by a decision of Charles III.280 In the Netherlands, the United
States was recognized by a resolution of the States General.281
4. Who Held the Recognition Power
That depended on the form of government of the recognizing
power. The five treaties recognizing the United States were concluded in the names of the countries‘ monarchs, and Spanish recognition was also a monarchical decision.282 But in the Netherlands, which had a weak monarch and a form of federal
government that was somewhat analogous to the Confederation,283 the recognition decision was made by the States General,
with the Prince of Orange performing the ceremonial function of
receiving Adams as the American minister.284 Recognition was not
exclusively an executive function; it depended on the form of government of the recognizing power.
5. The Ministerial Thesis
David Gray Adler‘s theory that recognition was understood to
be a ministerial function of the Executive is flawed because it
rests on the premise that the Receive Ambassadors Clause is the
source of the recognition power. The history described above
shows that the founders well understood the distinction between
recognition and receiving ambassadors. Adler‘s theory is never-
279. See Treaty of Friendship, Limits and Navigation, supra note 206 (Spain); Definitive Treaty of Peace, supra note 218 (Great Britain); Treaty of Amity and Commerce with
Sweden, supra note 249; Treaty of Amity and Commerce, supra note 179 (Netherlands);
Treaty of Amity and Commerce, supra note 139 (France).
280. See supra notes 201–06 and accompanying text.
281. See supra note 178 and accompanying text.
282. See Treaty of Friendship, Limits and Navigation, supra note 206 (Spain); Definitive Treaty of Peace, supra note 218 (Great Britain); Treaty of Amity and Commerce with
Sweden, supra note 249; Treaty of Amity and Commerce, supra note 179 (Netherlands);
Treaty of Amity and Commerce, supra note 139 (France).
283. See supra note 174 and accompanying text. Also see Madison‘s and Hamilton‘s
fascinating analysis of the weakness in the government of the United Netherlands in THE
FEDERALIST NO. 20, supra note 77, at 130 (James Madison & Alexander Hamilton).
284. See GOEBEL, supra note 10, at 95.
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theless important because he, virtually alone among scholars, argues that both recognition and the receipt of ambassadors were
originally understood as ministerial functions, and not discretionary powers.285
Adler‘s emphasis is on the conduct of the Washington administration.286 Following the suspension and then execution of Louis
XVI, Washington recognized the revolutionary governments of
France in 1792 and 1793 by adopting the rule of de facto recognition set out by Emmerich de Vattel, the most influential writer on
the law of nations.287 Vattel‘s doctrines rest on two principles: that
all nations are equal and possess the same rights,288 and that
every nation has the right to determine its form of government
through its own will and without outside interference.289 Thus, no
foreign state may set itself up as the judge of how another sovereign rules.290 It therefore follows, according to Vattel, that any
new government is entitled to recognition when it is in ―actual
possession‖ of national powers, regardless of how it gained power
or the form of government that was established.291 This is precisely the explanation that Washington gave for recognizing the
French revolutionary regime:
We certainly cannot deny to other nations that principle whereon
our own government is founded, that every nation has a right to govern itself internally under what forms it pleases, and to change
these forms at it‘s own will: and externally to transact business with
other nations thro‘ whatever organ it chuses, whether that be a king,
convention, assembly, committee, president or whatever it be. The
only thing essential is the will of the nation.292
285. Adler, supra note 4, at 140–49.
286. Id. at 141–45.
287. Id. at 141. On Vattel‘s preeminent position among the writers of the law of nations
during the latter part of the eighteenth and early part of the nineteenth century, see, for
example, FRANCIS S. RUDDY, INTERNATIONAL LAW IN THE ENLIGHTENMENT: THE
BACKGROUND OF EMMERICH DE VATTEL‘S LE DROIT DES GENS 281–286, 307–10 (1975). See
also MARK WESTON JANIS, THE AMERICAN TRADITION OF INTERNATIONAL LAW 128 (2004);
Stéphane Beaulac, Emer de Vattel and the Externalization of Sovereignty, 5 J. HIST. OF
INT‘L L. 241 (2003).
288. There is ―a perfect equality of rights among Nations in the conduct of their affairs
and in the pursuit of their policies.‖ Introduction to EMMERICH DE VATTEL, THE LAW OF
NATIONS OR THE PRINCIPLES OF NATURAL LAW 7 (Charles G. Fenwick trans., Carnegie
Inst. of Wash. 1916) (1758).
289. Id., bk. I, § 4, at 11.
290. Id., bk. II, §§ 54–55, at 131.
291. Id., bk. IV, § 68, at 365–66.
292. Letter from Thomas Jefferson to Thomas Pinckney (Dec. 30, 1792), in 24 THE
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Having recognized the French government, Washington received its controversial minister, Edmund Genet.293 This action
was also consistent with Vattel. Because all nations, no matter
how powerful or weak, have the same rights, and because of the
importance of diplomatic relations to preserving peace,294 Vattel
asserted that every recognized government has an absolute right
to send and receive ambassadors.295 Thus, the recognition of a foreign government and the receipt of its ministers are, according to
Vattel, ministerial functions: if a sovereign determines factually
that a foreign government is in actual possession of a nation‘s
powers, it is duty bound to recognize that government and to receive its ambassadors.296
The actions of the Washington administration in recognizing
the revolutionary French governments and receiving its minister
were then, and remain now, of profound importance and will be
discussed in detail in a following paper. But these postratification actions cannot be turned back in time; and, more importantly, one must take into account how European nations
treated Vattel‘s doctrines during the Confederation period.
In eighteenth century Europe, there was a disjunction between
the theoretical doctrines of the law of nations and the actual practices of governments. Those doctrines, as ably articulated by Vattel and other theorists, were simply not followed by European
powers when it was against their self-interest.297 Consider first
the issue of recognition. Premature recognition—that is, recognition before actual possession was accomplished—violated the law
of nations and was a causus belli.298 Yet one can hardly imagine a
clearer case of premature recognition than France‘s recognition of
the United States in early 1778.299 The Netherlands is a closer
case, but even that recognition occurred before the Preliminary
PAPERS OF THOMAS JEFFERSON 802, 803 (John Catanzariti et al. eds., 1990). For Washington‘s pre-approval of this letter, see Letter from George Washington to Thomas Jefferson
(Dec. 30, 1792), in 24 THE PAPERS OF THOMAS JEFFERSON supra note 75, at 804, 804 (John
Catanzariti et al. eds., 1990) .
293. HERRING, supra note 11, at 70–71.
294. VATTEL, supra note 288, bk. II, § 236, 233; id. bk. IV, §§ 55–57, at 362.
295. See id., bk. IV, § 63, at 364; see also id., bk. IV, § 78, at 369 (noting that the refusal
to receive an ambassador, even from a small or weak state, is a violation of the law of nations).
296. Id. §§ 57, 63, 65, at 362, 364.
297. See, e.g., CORWIN, supra note 141, at 9–11, 20; supra notes 128–31 and accompanying text.
298. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 60.
299. Id. at 61–62; see supra notes 139–42 and accompanying text.
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Articles of Peace were signed and while the British army was in
control of a substantial portion of its rebellious colonies.300
Consider next the actions of European nations following the
Treaty of Peace. Under Vattel‘s doctrine of actual possession, the
United States was now clearly entitled to recognition.301 Russia
refused to recognize the United States until 1809, and most of the
countries approached by the American commissioners wanted
nothing to do with the new republic.302
Then there is Vattel‘s doctrine that nations have a duty to exchange foreign ministers in order to conduct diplomatic relations
and preserve the peace.303 Catherine II sent Francis Dana packing
in 1785,304 and Great Britain refused to have full diplomatic relations with the United States for eight years following its recognition of American independence.305
These actions were not atypical of the behavior of European
powers in the eighteenth century.306 There was a law of nations
that was supposed to govern international behavior. Some rules
were clearly established while others were not; but for even the
most rigid rules,
the whole diplomacy of the time aimed to evade or to violate them as
much as was consistent with political safety, with the result that
there existed a régime of policies rather than of laws, and one which
pretended an observance of forms rather than the spirit of international equity.307
300. See Provisional Articles, supra note 212; Treaty of Amity and Commerce, supra
note 179; BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 113, 123, 125.
301. See VATTEL, supra note 288, bk. I, § 208, at 85.
302. BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 113, 164–66.
303. VATTEL, supra note 288, bk. IV, §§ 55–56, at 362.
304. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 44–45.
305. See BAILEY, supra note 4, at 54. Consider also Vattel‘s laws on neutrality, which
require strict impartiality among the belligerents. VATTEL, supra note 288, bk. III, § 104,
at 268. Could anyone say with a straight face that these principles were followed by
France or Spain? While claiming neutrality, they actively intervened on behalf of the revolutionaries, providing huge loans and equipping Washington‘s army through a flourishing
trade in contraband. See BEMIS, THE DIPLOMACY OF REVOLUTION, supra note 120, at 28;
DULL, supra note 122, at 48; HERRING, supra note 11, at 18.
306. Nor were these atypical actions of European powers before and after the eighteenth century. The Swiss Confederation was independent for almost two centuries before
it was officially recognized by the Empire in 1648; Spain did not recognize the independence of low countries until 1648, or of Portugal until 1668 (the latter had separated in
1640); and Belgium was not recognized by Holland until 1839. States: Their Recognition
and Continuity, 1 Moore DIGEST, supra note 4, § 27, at 72.
307. GOEBEL, supra note 10, at 73.
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Major powers were not constrained by norms of legality. The ministries violated treaty obligations in times of crisis308 and unhesitatingly adopted practices (including secretly using ―dissimulation, deception, espionage, bribery, treachery, robbery and even
assassination‖) that advanced the interests of their nations at the
expense of others.309
Given the rapaciousness of the European powers, and their
unwillingness to be constrained by rules of law, on what basis can
one attribute to the founders a belief that their new government
would follow Vattel‘s doctrines during periods that could threaten
the new nation‘s existence?
Considering the importance of recognition and the establishment of diplomatic relations during the Confederation period, one
would assume that these subjects would take on equivalent importance in the debates over the construction and ratification of
the Constitution. From the available records that I have reviewed, it appears clear that they did not. The discussion that follows focuses on the two textual provisions of the Constitution that
arguably give the President a plenary recognition power—the Receive Ambassadors and Executive Vesting Clauses. It also deals
more broadly with the then-prevailing understanding of executive
power because, in the ratification debates, the Anti-Federalists
identified and challenged, and the Federalists identified and defended, every power that was thought to be vested in the President.
C. The Receive Ambassadors Clause
1. The Constitutional Convention
Article IX of the Articles of Confederation had granted many of
the royal prerogatives to Congress, including the ―sole and exclusive right . . . of sending and receiving ambassadors.‖310 In the
Constitutional Convention, the prerogative of sending and receiving ambassadors was split in two.311 The first reference to receiv308. HERRING, supra note 11, at 69.
309. See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 15–16.
310. ARTICLES OF CONFEDERATION art. IX. Reinforcing Congress‘s exclusive power, Article VI prohibited the states from exercising this right without the consent of Congress.
Id. art. VI.
311. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 81, at 144–46 (July
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ing ambassadors is contained in the Committee of Detail‘s draft of
the Constitution, which was released on August 6, 1787.312 The
draft listed powers and duties of the President, including provisions that are very similar to what would become Article II, Section 3 of the Constitution.313 One of those provisions was that the
President ―shall receive Ambassadors.‖314 But the appointment of
ambassadors was dealt with differently. The Senate was given
power to appoint ambassadors and judges of the Supreme Court,
while the President was given the power to appoint all other officers; the Senate was also given the power to make treaties.315
The appointment power was extremely controversial and provoked considerable debate both before and after this draft was issued. As James Madison reported to Jefferson:
On the question whether [the Executive] should consist of a single
person, or a plurality of co-ordinate members, on the mode of appointment, on the duration in office, on the degree of power, on the
re-eligibility, tedious and reiterated discussions took place. . . . The
questions concerning the degree of power turned chiefly on the appointment to offices, and the controul of the Legislature. An absolute
appointment to all offices—to some offices—to no offices, formed the
scale of opinions on the first point.316
Following the issuance of the Committee of Detail‘s draft, both
Elbridge Gerry and Madison opposed the proposal to give the Senate power to appoint ambassadors.317 On the other hand, the
proposed Receive Ambassadors Clause did not engender any recorded discussion.318 It was amended by the delegates, without
debate, to add ―and other public Ministers.‖319 As the Convention
neared an end, the Committee of Eleven issued a revised draft of
14, 1787).
312. Id. at 177, 185 (Aug. 6, 1787).
313. Compare id. at 185–86, with U.S. CONST. art. II, § 3.
314. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 81, at 185 (Aug. 6, 1787).
315. Id. at 183, 185.
316. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 12 THE
PAPERS OF THOMAS JEFFERSON, supra note 226, at 270, 272–73. The second contentious
issue of executive power that Madison discussed in this letter was the veto. Id. at 273.
Madison also noted that the debates concerning the Executive were ―peculiarly embarrassing,‖ presumably because they were made in the presence of George Washington, who
chaired the Convention, and whom almost everyone assumed would be the first chief executive. Id. at 272.
317. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 81, at 285 (Aug. 14,
1787).
318. Id. at 419 (Aug. 25, 1787).
319. Id.
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the Constitution on September 7.320 This draft gave the President
the appointment power, subject to the consent of the Senate, of
ambassadors, other public ministers, judges of the Supreme
Court, and all other officers of the United States.321 Finally, after
inserting ―Consuls‖ into the draft of the appointments power in
Article II, Section 2 (but not in the Receive Ambassadors Clause
in Section 3), the delegates voted to give the President the power
to appoint, with the consent of the Senate, ambassadors, other
public ministers and consuls, judges of the Supreme Court and all
other officers of the United States.322
There is another piece of evidence that supports a limited view
of the Receive Ambassadors Clause. On June 18, 1787, Hamilton
made his famous all-day speech on his preferred constitution.323
No other delegate came close to matching Hamilton‘s zeal for a
strong Executive, who, he argued, should serve during good behavior (thus the later charge that Hamilton wanted an elected
king).324 So it is interesting to revisit Hamilton‘s proposal on executive powers:
The authorities & functions of the Executive to be as follows: to have
a negative on all laws about to be passed, and the execution of all
laws passed, to have the direction of war when authorized or begun;
to have with the advice and approbation of the Senate the power of
making all treaties; to have the sole appointment of the heads or
chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (Ambassadors to
foreign Nations included) subject to the approbation or rejection of
the Senate; to have the power of pardoning all offences except Tréason; which he shall not pardon without the approbation of the Senate.325
Notably, Hamilton includes the nomination of ambassadors as
a presidential power (subject to Senate approval) but omits any
reference to receiving ambassadors.326 It appears that not even
Hamilton regarded that function as consequential.
320. Id. at 532–43 (Sept. 7, 1787).
321. See id. at 533. The President was also given the power to make treaties, subject to
confirmation by two-thirds of Senators present. Id. at 540.
322. Id. at 533 (Sept. 7, 1787).
323. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 81, at 304–11 (June
18, 1787).
324. Id. at 310.
325. Id. at 292.
326. See id. at 292–93.
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Thus, although the records of the Convention are incomplete,
there is no discussion in the available documents of the Receive
Ambassadors Clause. What conclusion can we draw from this history? Certainly nothing definitive. But the casual way in which
the Convention dealt with the Receive Ambassadors Clause is
more consistent with the notion that the delegates regarded it as
a simple ministerial function of the President rather than an important executive power.327 There is no evidence that the delegates viewed the Receive Ambassadors Clause as vesting the recognition power in the President. This is consistent with the
distinction between recognition and the receipt of ambassadors
that characterized United States experiences during the Confederation period. Indeed, there is no record that the subject of recognizing foreign states or governments ever came up in the Convention.
2. The Ratification Debates
The ratification debates took place in two forums. The public
understanding of the Constitution was addressed and debated in
pamphlets and countless letters and articles in the newspapers.328
Those debates were carried forward by leading advocates and opponents of the Constitution in the Ratification Conventions. 329
The records of the ratification debates are incomplete, but they
are nevertheless voluminous and it is unlikely that any issue of
importance is largely missing.330 Although Hamilton complained
in The Federalist that the Receive Ambassadors Clause ―has been
a rich theme of declamation[s],‖331 a comprehensive search of the
327. Arthur Bestor points out the Receive Ambassadors Clause in the draft of the
Committee of Detail was paired with a clause in the same sentence that the President
shall ―correspond with the supreme Executives of the several States.‖ Bestor, supra note
204, at 87. He presents this coupling as evidence that the delegates viewed the Receive
Ambassadors Clause as primarily a ceremonial function that provided a channel of communications with foreign nations. Id. at 86–87.
328. See, e.g., JOHN K. ALEXANDER, THE SELLING OF THE CONSTITUTIONAL
CONVENTION: A HISTORY OF NEWS COVERAGE 126–27 (1990).
329. See, e.g., Letter from George Washington to James Madison (Oct. 10, 1787), in
THE ORIGINS OF THE AMERICAN CONSTITUTION: A DOCUMENTARY HISTORY 56, 57 (Michael
Kammen ed., 1986).
330. Of course, debates also took place in oral discussions and private letters. What
little evidence we have of these are diary entries and subsequently published letters.
331. THE FEDERALIST NO. 69, supra note 77, at 419 (Alexander Hamilton); see supra
notes 84–86 and accompanying text.
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available records did not uncover anything resembling such ―declamations.‖332 Indeed, there is practically nothing of substance
about the Receive Ambassadors Clause in all of these materials
that were reviewed. This turned out to be different than trying to
find a needle in a haystack. There is no needle there.
In all of the state convention materials currently available,
there is only one reference to the Receive Ambassadors Clause. In
this lone reference, Archibald Maclaine, a Federalist in the North
Carolina Convention, argued that the President is the obvious
person to receive foreign diplomats because Congress is often not
in session, while the President is ―perpetually acting for the public.‖333 And there is only one reference to the subject of receiving
332. The primary source that my research assistants and I used is THE DOCUMENTARY
HISTORY OF THE RATIFICATION OF THE CONSTITUTION (John P. Kaminski et al. eds., 2009)
[hereinafter THE DOCUMENTARY HISTORY]. For the sake of brevity, subsequent citations to
volumes of The Documentary History edited by John P. Kaminski omit editor and publication information. For those volumes that contain an editor other than John P. Kaminski,
the editor‘s name and year of publication have been reprinted in full. This series, which
currently has twenty-three volumes, is considered the most comprehensive source of information on the ratification debates. See, e.g., Jeffrey S. Sutton, The Role of History in
Judging Disputes About the Meaning of the Constitution, 41 TEX. TECH L. REV. 1173, 1189
n.91 (2009). In addition to including a vast amount of commentary from newspapers and
pamphlets, it contains a more thorough account of state convention debates than Elliot’s
Debates (a fact confirmed by comparing the respective accounts of the New York and
Pennsylvania conventions). The entire twenty-three volume series is now searchable online at http://rotunda.upress.virginia.edu. However, this series presents two limitations. It
is still a work in progress and does not contain the ratification debates from every state.
At present, it contains the debates from eight states: Connecticut, Delaware, Georgia,
Massachusetts, New Jersey, New York, Pennsylvania, and Virginia. In addition, its coverage of the state convention debates is sometimes limited by the sparse minutes available
for some of the conventions. See, e.g., 3 THE DOCUMENTARY HISTORY, supra, at 44–45 (Delaware). In Massachusetts, for example, very few minutes were recorded for the two days
in which Article II of the Constitution was debated, while in Georgia, the minutes for the
convention as a whole are rather rudimentary. See 3 THE DOCUMENTARY HISTORY, supra,
at 212–14 (Georgia).
We also used THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF
THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION OF
PHILADELPHIA IN 1787 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter ELLIOT‘S DEBATES].
It provides a useful addition to The Documentary History because it contains lengthy accounts of the state conventions in North and South Carolina, as well as coverage (albeit
limited) of the Maryland and New Hampshire conventions.
We also searched the collection of writings by John Adams, Madison, Jefferson and
Washington. In addition, we read BERNARD BAILYN, THE DEBATE ON THE CONSTITUTION
(1995); ESSAYS ON THE CONSTITUTION OF THE UNITED STATES (Paul L. Ford ed., 1892);
PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES (Paul L. Ford ed., 1888); THE
ANTIFEDERALIST PAPERS (Morton Borden ed., 1965); THE COMPLETE ANTI-FEDERALIST
(Herbert L. Storing ed., 1981), and of course The Federalist. Finally, because The Federalist was published in New York City newspapers, we read the newspapers published in that
city from October 1787 through May 1788.
333. Archibald Maclaine, Debates in North Carolina Convention (July 28, 1788), in 4
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ambassadors. In the Virginia Convention, William Grayson, a
leading Anti-Federalist, sought to bolster the opposition‘s argument that the President and Senate could, by treaty, violate the
laws of nations and relinquish navigation rights on the Mississippi River without the consent of the House of Representatives.334
Grayson cited several examples of countries not following the law
of nations.335 Grayson‘s first example was that ―several Oriental
nations . . . receive no ambassadors.‖336 He also said that ―[i]t is a
custom with the grand seignior to receive, but not to send ambassadors. It is a particular custom with him, in time of war with
Russia, to put the Russian ambassador in the Seven Towers.‖337
In all of the extant materials on the ratification debates in
newspapers and pamphlets, there are, outside of The Federalist,
only ten references to the authority or practice of receiving ambassadors. Five merely cited Congress‘s authority under the Articles of Confederation to receive ambassadors.338 Two dismissed
ELLIOT‘S DEBATES, supra note 332, at 1, 135. Maclaine was actually responding to the
claim that the President‘s power in Article II, Section 2 to fill vacancies while Congress
was in recess smacked of ―a monarchical power.‖ Id. Maclaine‘s rejoinder was:
Congress are not to be sitting at all times; they will only sit from time to
time, as the public business may render it necessary. Therefore the executive
ought to make temporary appointments, as well as receive ambassadors and
other public ministers. This power can be vested nowhere but in the executive, because he is perpetually acting for the public; for, though the Senate is
to advise him in the appointment of officers, &c., yet, during the recess, the
President must do this business, or else it will be neglected; and such neglect
may occasion public inconveniences.
Id.
334. William Grayson, Debates in Virginia Convention (June 18, 1788), in 3 ELLIOT‘S
DEBATES, supra note 332, at 1, 506.
335. Id. at 505.
336. Id.
337. Id.
338. A Federal Republican, To the People of Virginia, NORFOLK & PORTSMOUTH J. (Va.),
Mar. 5, 1787, reprinted in 8 THE DOCUMENTARY HISTORY, supra note 332, at 457, 457 (listing ―sending and receiving ambassadors‖ as one of several powers for which Congress was
granted ―sole and exclusive‖ authority under the Articles of Confederation); P. Valerius
Agricola, An Essay, on the Constitution Recommended by the Federal Convention to the
United States, ALBANY GAZETTE, Dec. 6, 1787, reprinted in 19 THE DOCUMENTARY
HISTORY, supra note 332, at 361, 363 (describing sending and receiving ambassadors as
one of the ―rights of a state‖ that Congress had been exercising); CUMBERLAND GAZETTE
(Va.), Nov. 15, 1787, reprinted in 4 THE DOCUMENTARY HISTORY, supra note 332, at 245,
245–46 (arguing that most powers granted to the federal government under the Constitution, including sending and receiving ambassadors, had already been granted under the
Articles of Confederation); Letter IV, AN ADDITIONAL NUMBER OF LETTERS FROM THE
FEDERAL FARMER TO THE REPUBLICAN (Dec. 25, 1787), reprinted in 17 THE DOCUMENTARY
HISTORY, supra note 332, at 265, 274 (citing, without criticism, the sole authority of Congress under the Articles of Confederation to send and receive ambassadors); James Mo-
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the importance of the Receive Ambassadors Clause in terms consistent with Hamilton‘s comments in The Federalist No. 69.339 One
letter writer expressed concern about funding a federal government populated by aristocrats who like to spend money lavishly,
such as in entertaining foreign ambassadors and consuls.340 Only
one letter, written by Cato (probably the Anti-Federalist Governor George Clinton), described the Clause in terms that are apparently critical.341 However, it is difficult to assess his views
about the Receive Ambassadors Clause because he lumped it to-
nroe, SOME OBSERVATIONS ON THE CONSTITUTION (May 25, 1787), reprinted in 9 THE
DOCUMENTARY HISTORY, supra note 332, at 844, 848–49 (describing Congress‘s ―extensive‖
powers under the Articles of Confederation as including the authority to ―send and receive
ambassadors‖). Also see the sources mentioned in supra note 332, in which some of these
letters, as well as pamphlets and letters in the succeeding notes, are reprinted.
339. (1) A Native of Virginia: This pamphlet, which was advertised in Virginia newspapers in April 1788, provides a clause-by–clause defense of the Constitution. A NATIVE OF
VIRGINIA, OBSERVATIONS UPON THE PROPOSED PLAN OF FEDERAL GOVERNMENT (Apr. 2,
1788), reprinted in 9 THE DOCUMENTARY HISTORY, supra note 332, at 655, 655–56. With
respect to Article II, Section 3, the author states: ―The powers given by this section are
such as in all governments, have always been, and must necessarily be, vested in the first
magistrate.‖ Id. at 682. (2) Albany Federal Committee: In this Federalist pamphlet, the
authors provide a point-by-point refutation of an April 10 circular published by the Albany
Anti-Federal Committee. See ALBANY ANTI-FEDERAL COMMITTEE CIRCULAR (Apr. 10,
1788), reprinted in 21 THE DOCUMENTARY HISTORY, supra note 332, at 1379, 1380–81; Albany Federal Committee, AN IMPARTIAL ADDRESS (Apr. 20, 1788), reprinted in 21 THE
DOCUMENTARY HISTORY, supra note 332, at 1388, 1394. While the Anti-Federalists did not
discuss the Receive Ambassadors Clause, the Federal Committee refers to the Clause in
their refutation of the claim that the President has too much power. See ALBANY ANTIFEDERALIST COMMITTEE CIRCULAR, supra, at 1380–81; Albany Federal Committee, AN
IMPARTIAL ADDRESS, supra, at 1394. The Federal Committee argued that the President‘s
limited power is evident by the fact that he can do virtually nothing without the advice of
the Senate except receive ambassadors. Id. The fact that the Committee felt no need to
defend the unchecked power of receiving ambassadors suggests that it believed the power
to be merely ministerial. See id. The entire passage is as follows:
He cannot touch a shilling of money unless a law is passed for the purpose—
He can make no treaty, no permanent appointment to offices, nor, in fact, do
any thing whatever but by and with the consent of the Senate; except receiving Ambassadors, and the common official powers that are
vested in the Governor of our state by our Constitution—and in general, his
powers are so far from being superior to an European king that, on many occasions, they are inferior to the Governor of our state.
Id.
340. Letter from A Briton, GA. GAZETTE, Dec. 13, 1787, reprinted in 3 THE
DOCUMENTARY HISTORY, supra note 332, at 254, 256–57 (Merrill Jensen et al. eds., 1978).
341. In Cato‘s fourth letter, he refers to the Receive Ambassadors Clause twice. Cato
IV, N.Y.J. (Nov. 8, 1787), reprinted in 19 THE DOCUMENTARY HISTORY, supra note 332, at
195, 198. Each time, he includes it in a laundry list of presidential powers, including the
power to appoint ambassadors, make treaties, veto legislation, command the military, and
pardon. Id. His argument was that the President was in fact given the same prerogatives
as the King of Great Britain, ―by which means an imperfect aristocracy bordering on monarchy may be established.‖ Id. at 197–98.
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gether with all of the enumerated presidential powers in an attempt to demonstrate that the President was given the prerogatives of the King.342 The powers that he singled out as particularly
excessive did not include receiving ambassadors.343 The fifth letter
is Americanus‘s response to Cato in which he refuted the claim
that the President has the same powers as the King.344 In making
this argument, Americanus listed numerous sole prerogatives of
the King, including sending and receiving ambassadors.345 Most of
those prerogatives were denied to the President or were subject to
a check by the Senate.346 This, he said, shows the ―immense disparity‖ between the powers of the King and the President.347 Although Americanus never expressly referred to the President‘s
sending and receiving powers under the Constitution, the implication of the argument is that the President‘s power is less than
the King‘s because the Senate has a veto power over the appointment of ambassadors.
That‘s it, except for The Federalist, in which the Receive Ambassadors Clause is mentioned in five numbers. Madison and
Hamilton described the authority to send and receive ambassadors as a standard political practice of other nations (contemporary and ancient)348 and an ―obvious and essential‖ practice of a
sovereign state that belongs to the federal government.349 And, as
discussed above, Hamilton stated that, despite some controversy
342. See id. at 197.
343. Id. at 197–98 (identifying the power of nomination and influence over all appointments, control of the military, unrestrained pardoning power, and the absence of an
executive council).
344. Americanus IV, N.Y. DAILY ADVERTISER, Dec. 5–6, 1787, reprinted in 19 THE
DOCUMENTARY HISTORY, supra note 332, at 354, 358–59. Since Cato IV was probably written by Hamilton‘s political archenemy in New York, reprinted in two other New York
newspapers, and led to lengthy responses from Americanus, see Americanus II (John Stevens, Jr.), N.Y. DAILY ADVERTISER, Nov. 23, 1787, reprinted in 1 THE DEBATE ON THE
CONSTITUTION, supra note 332, at 415, 416–17, it is possible that Hamilton had this exchange in mind when he referred to a ―rich theme of declamation‖ concerning the Receive
Ambassadors Clause. See THE FEDERALIST NO. 69, supra note 77, at 419 (Alexander Hamilton).
345. Americanus IV, supra note 344, at 358.
346. See Americanus II, supra note 344, at 416–18; id. at 358.
347. Americanus IV, supra note 344, at 358.
348. THE FEDERALIST NO. 18, supra note 77, at 120 (James Madison & Alexander Hamilton); NO. 20, supra note 77, at 130 (James Madison).
349. THE FEDERALIST NO. 42, supra note 77, at 260 (James Madison).
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surrounding the Receive Ambassadors Clause, it is merely ministerial in nature.350
There is another striking pattern of omission with respect to
the Receive Ambassadors Clause. Both Federalists and AntiFederalists who conducted a thorough review of presidential powers ignored the existence of the Clause.351 For example, Cassius (a
Federalist) recited with approval all of the duties and powers in
Article II, Section 3, but left out the Receive Ambassadors
Clause.352 The Anti-Federalists Old Whig,353 Philadelphiensis354
and Vox Populi,355 and the Federalists Plain Truth,356 Tench
Coxe,357 and John Dickinson358 all compared the powers of the
President to the royal prerogatives and did not mention the Receive Ambassadors Clause. If anyone would think that the Clause
vested power in the President, it would have been John Jay, the
Secretary for Foreign Affairs. But he did not mention it in his address on the Constitution.359 In the North Carolina Convention,
James Iredell examined the President‘s powers in Article II one
by one and showed that they were much less substantial than the
King‘s.360 He did not mention the Receive Ambassadors Clause.361
350. THE FEDERALIST NO. 69, supra note 77, at 419 (Alexander Hamilton); NO. 77, supra note 77, at 462 (Alexander Hamilton).
351. The exceptions are Cato, see supra note 341 and accompanying text; Americanus,
see supra notes 344–47 and accompanying text, who mentioned it briefly; and Publius, see
supra note 350 and accompanying text.
352. Cassius, X, MASS. GAZETTE, Dec. 21, 1787, reprinted in ESSAYS ON THE
CONSTITUTION OF THE UNITED STATES, supra note 332, at 38, 38–39.
353. Essays of An Old Whig, INDEP. GAZETTEER (Phila.), Oct. 1787–Feb. 1788, reprinted
in 3 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 17, 37–38.
354. Philadelphiensis XII, INDEP. GAZETTEER (Phila.), Nov. 1787–Apr. 1788, reprinted
in 3 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 136, 136–38.
355. Essay by Vox Populi, MASS. GAZETTE, Oct.–Nov. 1787, reprinted in 4 THE
COMPLETE ANTI-FEDERALIST, supra note 332, at 41, 52–53.
356. Rebuttal to “An Officer of the Late Continental Army”: “Plain Truth,” INDEP.
GAZETTEER (Phila.), Nov. 10, 1787, reprinted in 1 THE DEBATE ON THE CONSTITUTION, supra note 332, at 105, 109–10 (stating the President does not have the power of a king because he is constrained by obtaining the approval of the Senate ―and can in no instance act
alone, except in the cause of humanity by granting reprieves and pardons‖).
357. Tench Coxe, An Examination of the Constitution of the United States of America,
in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES, supra note 332, at 134, 137–
39.
358. John Dickinson, The Letters of Fabius (Letter IX), in PAMPHLETS ON THE
CONSTITUTION OF THE UNITED STATES, supra note 332, at 211, 211–12.
359. See John Jay, Debates in New York Convention (June 23, 1787), in 2 ELLIOT‘S
DEBATES, supra note 332, at 205, 282–86.
360. James Iredell, Debates in North Carolina Convention (July 25, 1788), in 4
ELLIOT‘S DEBATES, supra note 332, at 1, 106–14.
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In the Pennsylvania Convention, James Wilson responded to
those who claimed that the Executive would be a tool of the Senate by saying that the Senate could do nothing without the Executive.362 He then stated that the President has powers that are
independent of the Senate.363 Of course, if Wilson viewed the Receive Ambassadors Clause as a presidential power, this would
have been a perfect occasion for mentioning it. Instead, Wilson
identified the unilateral powers of the President as being commander-in-chief of the military, having the authority to require
written opinions from the heads of departments, and granting reprieves and pardons.364
D. The Executive Vesting Clause
Like the Receive Ambassadors Clause, the Executive Vesting
Clause first emerged in the draft presented by the Committee of
Detail.365 The article dealing with the presidency began with this
statement: ―The executive power of the United States shall be
vested in a single person. His style shall be, ‗The President of the
United States of America,‘ and his title shall be, ‗His Excellency.‘‖366 As Madison had reported to Jefferson, one of the main disputes concerning the Executive was whether it ―should consist of
a single person, or a plurality of coordinate members.‖367 This provision resolved the dispute in favor of a single Executive. It was
then changed by the Committee of Style by merging and tightening the two sentences into one, and by eliminating the title ―His
Excellency,‖ which was bound to incite true republicans.368 Thus,
the Executive Vesting Clause took its present form in Article II,
361. See id. Iredell was the leading Federalist in North Carolina and would be a Supreme Court Justice.
362. James Wilson, Debates in Pennsylvania Convention (Dec. 4, 1787), in 3 RECORDS
OF THE FEDERAL CONVENTION, supra note 81, at 161, 162. Wilson led the pro-executive
faction in the Constitutional Convention and would be a Supreme Court Justice.
363. James Wilson, Debates in Pennsylvania Convention (Dec. 11, 1787), in 2 ELLIOT‘S
DEBATES, supra note 332, at 415, 510.
364. Id. at 512.
365. Draft of Constitution, Debates in the Federal Convention of 1787 (Aug. 6, 1787),
reprinted in 5 ELLIOT‘S DEBATES, supra note 332, at 123, 380.
366. Id.
367. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), supra note 316,
at 272.
368. See REPORT OF COMM. OF STYLES (Sept. 12, 1787), reprinted in 2 RECORDS OF THE
FEDERAL CONVENTION, supra note 81, at 590, 597.
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Section 1: ―The executive Power shall be vested in a President of
the United States of America.‖369
As Arthur Bestor has observed, the origin of the Executive
Vesting Clause in the draft of the Committee of Detail, and the
lack of discussion of that Clause for the remainder of the Convention, makes it unlikely that the Clause was viewed as an independent source of presidential power over foreign affairs:
Unless the simple phrase ―Executive Power‖ underwent an explosive
expansion of meaning in the six weeks that elapsed between distribution of the Committee‘s draft and the adoption of the finished
Constitution, it is impossible to argue that ‗Executive Power‘ in itself
signified to the members of the Convention a wide-ranging Presidential authority to determine virtually all aspects of American foreign
policy. The term could not possibly have had that meaning in the report of the Committee of Detail, for the essential powers in the realm
of diplomacy were specifically bestowed elsewhere—that is to say, on
the Senate exclusively. In their use of general terms like ‗Executive
Power,‘ the framers obviously intended that the meaning should be
arrived at by observing the particular powers actually enumerated
in the relevant article of the Constitution.370
There is no recorded discussion of the Executive Vesting
Clause,371 nor any indication that any delegate suggested that either version of the Executive Vesting Clause would be an independent source of presidential power. It is also noteworthy that
Hamilton‘s proposed constitution did not contain an executive
vesting clause.372 Like the other delegates, Hamilton dealt with
the scope of presidential authority by proposing powers that
would be specifically enumerated in the Constitution.373
This silence over the Executive Vesting Clause is replicated in
the ratification debates. There is no record that any participant in
those debates suggested that this Clause was an independent
source of presidential power, or that it had any relevance to the
conduct of foreign affairs.
369. U.S. CONST. art. II, § 1.
370. Bestor, supra note 204, at 87.
371. See RAMSEY, supra note 4, at 115.
372. 1 RECORDS OF THE FEDERAL CONVENTION, supra note 81, at 292; see supra notes
324–26 and accompanying text.
373. 1 RECORDS OF THE FEDERAL CONVENTION, supra note 81, at 292; see supra notes
324–26 and accompanying text.
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E. Criticisms of Executive Power
The silence in the ratification debates concerning the Receive
Ambassadors and Executive Vesting Clauses might be explainable if other presidential powers had passed unremarked. On the
contrary, however, the Anti-Federalists attacked practically everything about the Executive. They objected to the President‘s
mode of election374 and his or her term of office and unlimited eligibility for reelection, which, they claimed, could lead to an
elected monarch.375 They attacked every power which they perceived to be vested in the Executive: the veto power;376 the com-
374. In The Federalist No. 68, Hamilton claimed that the mode of electing the President ―is almost the only part of the system, of any consequence, which has escaped without
severe censure, or which has received the slightest mark of approbation from its opponents.‖ THE FEDERALIST NO. 68, supra note 77, at 410 (Alexander Hamilton). Actually,
most Anti-Federalists ―strongly disapproved of the procedures for selecting the President.‖
THE ANTI-FEDERALIST PAPERS, supra note 332, at 199 (editor‘s comment); see, e.g., William
Grayson, Debates in Virginia Convention (June 18, 1788), in 10 THE DOCUMENTARY
HISTORY, supra note 332, at 1371, 1373–74.
375. E.g., THE ANTI-FEDERALIST PAPERS, supra note 332, at 205–06; ALBANY ANTIFEDERALIST COMMITTEE CIRCULAR, supra note 339, at 1381; Cato IV, N.Y.J., Nov. 18,
1787, supra note 341, at 195, 196–97; Samuel Chase, Notes of Speeches Delivered to the
Maryland Ratifying Convention (April 1788), in 5 THE COMPLETE ANTI-FEDERALIST, supra
note 332, at 79, 83; William Davie, Debates in North Carolina Convention (July 26, 1788),
in 4 ELLIOT‘S DEBATES, supra note 332, at 1, 102–04; George Mason on the President: He
Will Serve for Life and Be Corrupted by Foreign Powers, Debates in Virginia Convention
(June 17, 1788), in 2 THE DEBATE ON THE CONSTITUTION, supra note 332, at 718, 718–19;
Governor Edmond Randolph‘s Reasons for Not Signing the Constitution (Dec. 27, 1787), in
8 THE DOCUMENTARY HISTORY, supra note 332, at 260, 273–74; William Grayson, Debates
in Virginia Convention (June 18, 1788), supra note 374, at 1373; William Lancaster, Debates in North Carolina Convention (July 30, 1788), in 4 ELLIOT‘S DEBATES, supra note
332, at 1, 213; Letter XIV, AN ADDITIONAL NUMBER OF LETTERS TO THE REPUBLICAN (Jan.
17, 1788), reprinted in 20 THE DOCUMENTARY HISTORY, supra note 332, at 1035, 1040–41;
James Lincoln, Debates in South Carolina Convention (Jan. 18, 1788), in 4 ELLIOT‘S
DEBATES, supra note 332, at 22, 314; Luther Martin, Genuine Information IX, MD.
GAZETTE (Balt.), Jan. 29, 1778, reprinted in 15 THE DOCUMENTARY HISTORY, supra note
332, at 494, 494–97; George Mason, Debates in Virginia Convention (June 17, 1788), in 10
THE DOCUMENTARY HISTORY, supra note 332, at 1338, 1365–66.
376. The presidential veto was seen as a blatant violation of the separation of powers
and the means by which the Executive could control the Legislature. Anti-Federalists argued that this gave the President more power than the British King, because, although
the veto was nominally a royal prerogative, it had not been used in almost a century. They
also argued that, if a veto power were given to the President, it should be restrained by an
independent council. See, e.g., Cato IV, supra note 341, at 197–98; Essays by a Farmer II,
MD. GAZETTE (Balt.), Feb. 29, 1788, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra
note 332, at 16, 21–22; Essay by the Impartial Examiner IV, VA. INDEP. CHRON., June 11,
1788, in 10 THE DOCUMENTARY HISTORY, supra note 332, at 1609, 1610–12; Essays by William Penn I, INDEP. GAZETTEER (Phila.), Jan. 3, 1788, reprinted in 3 THE COMPLETE ANTIFEDERALIST, supra note 332, at 168, 173; Letter by an Officer of the Late Continental Army, INDEP. GAZETTEER (Phila.), Nov. 6, 1787, reprinted in 2 THE DOCUMENTARY HISTORY,
supra note 332, at 210, 211–12; Letter from Luther Martin to the Md. Legislature (1787),
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mander-in-chief power;377 the appointments power (including the
power to make recess appointments);378 and the pardon power.379
in 1 ELLIOT‘S DEBATES, supra note 332, at 344, 367; Philadelphiensis XII, PHILA.
FREEMAN‘S J., Apr. 9, 1788, reprinted in 12 THE DOCUMENTARY HISTORY, supra note 332,
at 60, 61–63; William Lancaster, Debates in North Carolina Convention (July 30, 1788), in
4 ELLIOT‘S DEBATES, supra note 332, at 1, 74.
377. The Anti-Federalists expressed fear that the President would command the armies in person and could thereby establish a military dictatorship or involve the nation in
foreign wars. As one influential letter-writer put it:
[L]et us suppose, a future President and commander in chief adored by his
army and the militia to as great a degree as our late illustrious commander
in chief; and we have only to suppose one thing more, that this man is without the virtue, the moderation and love of liberty which possessed the mind of
our late general, and this country will be involved at once in war and tyranny. So far is it from its being improbable that the man who shall hereafter be
in a situation to make the attempt to perpetuate his own power, should want
the virtues of General Washington; that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power.
An Old Whig V, INDEP. GAZETTEER (Phila.), Nov. 1, 1787, reprinted in 13 THE
DOCUMENTARY HISTORY, supra note 332, at 538, 542; see also Essay by a Georgian, GA.
GAZETTE, Nov. 15, 1787, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra note 332,
at 129, 133–34; Essays by Republicus, KY. GAZETTE (Lexington), Mar. 1, 1788, reprinted in
5 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 165, 169; Essay by Tamony, VA.
INDEP. CHRON., Jan. 9, 1788, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra note
332, at 145, 146–47; Patrick Henry, Debates in Virginia Convention (June 5, 1778), in 9
THE DOCUMENTARY HISTORY, supra note 332, at 943, 963–65; Letter by an Officer of the
Late Continental Army, supra note 376, at 212–13; Letter from Rev. James Madison to
James Madison (Oct. 1, 1787), in 8 THE DOCUMENTARY HISTORY, supra note 332, at 31, 32;
Luther Martin, Information to the General Assembly of the State of Maryland (1788), in 2
THE COMPLETE ANTI-FEDERALIST, supra note 332, at 67–68; George Mason, Debates in
Virginia Convention (June 18, 1778), in 10 THE DOCUMENTARY HISTORY, supra note 332,
at 1371, 1378–79; Robert Miller, Debates in North Carolina Convention (July 28, 1788), in
4 ELLIOT‘S DEBATES, supra note 332, at 1, 114; Philadelphiensis IX, INDEP. GAZETTEER
(Phila.), Nov. 1787–Apr. 1788, reprinted in 3 THE COMPLETE ANTI-FEDERALIST, supra note
332, at 127, 127–30; Philadelphiensis XII, supra note 376, at 61–62; Reply to Cassius by
Brutus, VA. INDEP. CHRON., May 14, 1788, reprinted in 5 THE COMPLETE ANTIFEDERALIST, supra note 332, at 201, 203.
378. Because of the involvement of the Senate, the appointments power was viewed as
another violation of the separation of powers. But the more fundamental complaint was
that this provision of Article II, Section 2 would give the President enormous power over
the government. Luther Martin‘s attack on appointments is hyperbolic but representative
of Anti-Federalist thought:
The person who nominates, will always in reality appoint, and that this was
giving the president a power and influence which together with the other
powers, bestowed upon him, would place him above all restraint and controul. . . . That the army and navy, which may be encreased without restraint
as to numbers, the officers of which from the highest to the lowest, are all to
be appointed by him and dependant on his will and pleasure, and commanded by him in person, will, of course, be subservient to his wishes, and
ready to execute his commands; in addition to which, the militia also are entirely subjected to his orders—That these circumstances, combined together,
will enable him, when he pleases, to become a king in name, as well as in
substance . . . .
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Luther Martin, Genuine Information IX, MD. GAZETTE (Balt.), Jan. 29, 1788, reprinted in
15 THE DOCUMENTARY HISTORY, supra note 332, at 494, 496; see, e.g., An Antifederalist
View of the Appointing Power Under the Constitution, in THE ANTIFEDERALIST PAPERS,
supra note 332, at 216, 216–22; An Old Whig V, INDEP. GAZETTER (Phila.), Nov. 1, 1787,
reprinted in 13 THE DOCUMENTARY HISTORY, supra note 332, at 538, 543; Anti-Federalist,
No. I, A Friend to the Rights of the People, FREEMAN‘S ORACLE (N.H.), Feb. 8, 1788, in 4
THE COMPLETE ANTI-FEDERALIST, supra note 332, at 235, 241; Cato I, S.C. GAZETTE, Nov.
26, 1787, reprinted in 5 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 137, 139 (opposing the recess appointments of judges); Cato IV, N.Y.J., Nov. 8, 1787, reprinted in
ESSAYS ON THE CONSTITUTION OF THE UNITED STATES, supra note 332, at 260, 261–62;
Samuel Chase, Notes of Speeches Delivered to the Maryland Ratifying Convention (Apr.
1788), in 5 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 79, 87; Essays by Republicus, supra note 377, at 168; William Findley, Debates in Pennsylvania Convention (Dec. 7,
1787), in 2 THE DOCUMENTARY HISTORY, supra note 332, at 512, 512–13 (objecting to the
appointment powers of the President because they lacked the proper separation of powers
between the executive and legislative branches); Governor Edmund Randolph‘s Reasons
for Not Signing the Constitution (Dec. 7, 1787), supra note 375, at 273 (objecting to the
recess appointment power);William Lenoir, Debates in North Carolina Convention (July
30, 1788), in 4 ELLIOT‘S DEBATES, supra note 332, at 1, 204–05 (opposing the adoption of
the Constitution because of the broad powers of the President, including his power to nominate); Letter from Luther Martin to the Md. Legislature, in 1 ELLIOT‘S DEBATES, supra
note 332, at 344, 366; Letter XIII, AN ADDITIONAL NUMBER OF LETTERS FROM THE FEDERAL
FARMER TO THE REPUBLICAN (Jan. 14, 1788), reprinted in 2 THE COMPLETE ANTIFEDERALIST, supra note 332, at 300, 301–07; Luther Martin, Speech to the Convention
(Nov. 29, 1787), in 14 THE DOCUMENTARY HISTORY, supra note 332, at 292; George Mason,
Objections to the Constitution of Government Formed by the Convention (1787), in 2 THE
COMPLETE ANTI-FEDERALIST, supra note 332, at 9, 12; James Monroe, Debates in Virginia
Convention (June 10, 1788), in 9 THE DOCUMENTARY HISTORY, supra note 332, at 1092,
1115 (arguing the Constitution created a dangerously powerful President by giving him
nomination powers); Sydney II, N.Y.J., June 14, 1788, reprinted in ESSAYS ON THE
CONSTITUTION OF THE UNITED STATES, supra note 332, at 307, 311. On the other hand,
John Adams thought that the appointments powers should be solely in the hands of the
President. Letter from John Adams to Thomas Jefferson (Dec. 6, 1787), in 1 THE DEBATE
ON THE CONSTITUTION, supra note 332, at 473, 473.
379. There were two major objections to the pardon power: first, the President could
employ the pardon power without the restraint of an executive council; and second, the
President could pardon for treason, when he himself may have been a party to the treasonous activities. See, e.g., Centinel II, FREEMAN‘S J. (Phila.), Oct. 24, 1787, reprinted in 2
THE COMPLETE ANTI-FEDERALIST, supra note 332, at 143, 151; Samuel Chase: Notes of
Speeches Delivered to the Maryland Ratifying Convention (July 30, 1788), supra note 375,
at 87; George Mason‘s Objections to the Constitution of Government formed by the Convention (October 7, 1799), in 8 THE DOCUMENTARY HISTORY, supra note 332, at 42, 45;
Governor Edmond Randolph‘s Reasons for Not Signing the Constitution, supra note 375,
at 274; William Lenoir, Debates in North Carolina Convention, supra note 378, at 204;
Letter XVIII, AN ADDITIONAL NUMBER OF LETTERS TO THE REPUBLICAN, Jan. 25, 1788, reprinted in 20 THE DOCUMENTARY HISTORY, supra note 332, at 1070, 1081; Luther Martin,
Genuine Information IX, supra note 375, at 495; George Mason, Debates in Virginia Convention (June 18, 1778), in 10 THE DOCUMENTARY HISTORY, supra note 332, at 1371,
1378–79; Thomas McKean, Debates in Pennsylvania Convention (Dec. 10, 1787), in 2 THE
DOCUMENTARY HISTORY, supra note 332, at 532, 534; Melancton Smith, Debates in New
York Convention (July 4, 1788), in 22 THE DOCUMENTARY HISTORY, supra note 332, at
2094, 2096; Sydney, N.Y.J., June 14, 1788, reprinted in 6 THE COMPLETE ANTIFEDERALIST, supra note 332, at 115, 117–18; The Dissent of the Minority of the Pennsylvania Convention, PA. PACKET, Dec. 18, 1787, in 15 THE DOCUMENTARY HISTORY, supra
note 332, at 7, 30.
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They complained that the President was not restrained by an independent council,380 and they said that the office of the VicePresident was both useless and dangerous.381 The legislative
checks on the veto, appointments and treaty-making powers were
dismissed as illusory.382 Recalling how the British monarchs had
―influenced‖ (i.e., corrupted) the entire Parliament,383 they
thought it would be easy for the President to use similar techniques to corrupt a Senate of only twenty-six members (or, some
predicted, the Senate would corrupt the President).384 And remov-
380. E.g., Cato IV, supra note 341, at 261–62; Letter from George Lee Turberville to
James Madison (Dec. 11, 1787), in 1 THE DEBATE ON THE CONSTITUTION, supra note 332,
at 477, 478; Letter from Rev. James Madison to James Madison (Oct. 1, 1787), in 1 THE
DEBATE ON THE CONSTITUTION, supra note 332, at 48, 49; Letter from Richard Henry Lee
to Governor Edmund Randolph, VA. GAZETTE (Petersburg), Dec. 6, 1787, reprinted in 1
THE DEBATE ON THE CONSTITUTION, supra note 332, at 465, 470–71; Letter XIII, AN
ADDITIONAL NUMBER OF LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN, supra
note 378, at 306–07; George Mason, Debates in Virginia Convention (June 18, 1778), in 10
THE DOCUMENTARY HISTORY, supra note 332, at 1371, 1378; George Mason‘s Objections to
the Constitution of Government Formed by the Convention, supra note 379, at 44; Philadelphiensis XII, supra note 354, at 62; Melancton Smith, Debates in New York Convention
(July 4, 1788), in 22 THE DOCUMENTARY HISTORY, supra note 332, at 2094, 2098; The Dissent of the Minority of the Pennsylvania Convention, supra note 379, at 30.
381. It was useless because Congress could elect a president if the incumbent died or
was disabled. It was dangerous because there would be direct executive involvement in the
Senate, and because the Vice President likely would be from and beholden to one of the
large states. E.g., David Caldwell, Debates in North Carolina Convention (July 24, 1788),
in 4 ELLIOT‘S DEBATES, supra note 332, at 1, 26; Cincinnatus IV, N.Y.J., Nov. 22, 1787, reprinted in 6 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 17, 19; Luther Martin,
Genuine Information IX, supra note 375, at 495; George Mason‘s Objections to the Constitution of Government Formed by the Convention, supra note 379, at 45; Luther Martin,
Speech to the Convention, supra note 378, at 292; George Mason, Debates in Virginia
Convention (June 18, 1778), in 10 THE DOCUMENTARY HISTORY, supra note 332, at 1338,
1367–68; James Monroe, Debates in Virginia Convention (June 18, 1778), in 10 THE
DOCUMENTARY HISTORY, supra note 332, at 1371, 1373; Richard Henry Lee‘s Proposed
Amendments (Sept. 27, 1787), in 1 THE DOCUMENTARY HISTORY, supra note 332, at 337,
338; Robert Whitehill, Debates in Pennsylvania Convention (Dec. 10, 1787), in 2 THE
DOCUMENTARY HISTORY, supra note 332, at 512, 512.
382. See An Old Whig V, supra note 377, at 541.
383. See 10 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 412–13 (A.L. Goodhart
& H.G. Hanbury eds., Little, Brown & Co. 1938); DAVID LINDSAY KEIR, THE
CONSTITUTIONAL HISTORY OF MODERN BRITAIN SINCE 1485, at 281–88 (9th ed. 1969); 5
GOLDWIN SMITH, A CONSTITUTIONAL AND LEGAL HISTORY OF ENGLAND 401–02 (1955); see
also BERNARD BAILYN, THE ORIGINS OF AMERICAN POLITICS 27–38 (1968); Reinstein, supra
note 4, at 287–95.
384. See, e.g., Centinel II, supra note 379, at 150–51; Dissent of the Minority of the
Pennsylvania Convention, PA. PACKET (Phila.), Dec. 18, 1787, in 1 THE DEBATE ON THE
CONSTITUTION, supra note 332, at 526, 547; Essay by Cornelius, HAMPSHIRE CHRON., Dec.
18, 1787, in 4 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 138, 143–44; Essays by
a Farmer V, MD. GAZETTE (Balt.), Mar. 25, 1788, in 5 THE COMPLETE ANTI-FEDERALIST,
supra note 332, at 40, 44–45; Essays of John DeWitt, AM. HERALD (Boston), Oct.–Dec.
1787, in 4 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 15, 26–27; Letter from
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ing a despotic President through impeachment was not a realistic
possibility because the jurors would be his or her partners in the
Senate, who might be coconspirators to the crime.385
Arguments over foreign policy were central to the ratification
debates. The Federalists pressed the necessity for a strong central government to protect the country from predatory designs by
European powers, while the Anti-Federalists discounted those
dangers and stressed that American liberty would be at risk with
a strong central government and entanglements in foreign politics.386 These were arguments over the scope of federal power as a
whole, and not about the allocation of powers within the federal
government. However, there was one major exception—the treaty-making power.
A common Anti-Federalist charge was that the treaty power in
Article II, in combination with the Supremacy Clause in Article
VI, gave legislative power to the President and Senate at the expense of the only popularly elected branch, the House of Representatives.387 The treaty power was debated most intensely in the
Luther Martin to the Md. Legislature, supra note 376, at 366; Samuel Spencer, Debates in
North Carolina Convention (July 28, 1788), in 2 THE DEBATE ON THE CONSTITUTION, supra
note 332, at 879, 879–81.
385. E.g., Cincinnatus IV, supra note 381, at 17–20; William Grayson, Debates in Virginia Convention (June 18, 1778), supra note 374, at 1374; Patrick Henry, Debates in Virginia Convention (June 19, 1788), in 10 THE DOCUMENTARY HISTORY, supra note 332, at
1387, 1394; Leonidas, N.Y.J., July 3, 1788, reprinted in 21 THE DOCUMENTARY HISTORY,
supra note 332, at 1262, 1262–63; Luther Martin, Genuine Information IX, MD. GAZETTE
(Balt.), Jan. 29, 1788, reprinted in 1 THE DEBATE ON THE CONSTITUTION, supra note 379,
at 631, 654–55; Luther Martin, Genuine Information IX, supra note 375, at 495; Luther
Martin, Speech to the Convention, supra note 378, at 289; George Mason, Debates in Virginia Convention (June 18, 1788), in 10 THE DOCUMENTARY HISTORY, supra note 332, at
1371, 1378–79; James Monroe, Debates in Virginia Convention (June 10, 1788), in 3
ELLIOT‘S DEBATES, supra note 332, at 1, 220–21; James Monroe, Some Observations on
the Constitution (1788), in 5 THE COMPLETE ANTI-FEDERALIST, supra note 332, at 278,
302; Samuel Spencer, Debates in North Carolina Convention (July 28, 1788), in 4 ELLIOT‘S
DEBATES, supra note 332, at 1, 116–18.
386. HERRING, supra note 11, at 53–55.
387. The Anti-Federalists claimed that this would give the President and the Senate
more power than the King of Great Britain because, although the King could make treaties, they were not binding as domestic law without Parliamentary legislation. See, e.g.,
CUMBERLAND GAZETTE (Va.), Nov. 22, 1787, reprinted in 4 THE DOCUMENTARY HISTORY,
supra note 332, at 296, 296; William Grayson, Debates in Virginia Convention (June 24,
1788), in 10 THE DOCUMENTARY HISTORY, supra note 332, at 1473, 1496; William Grayson,
Debates in Virginia Convention (June 18, 1788), supra note 374, at 1382–83; William
Grayson, Debates in Virginia Convention (June 12, 1788), in 10 THE DOCUMENTARY
HISTORY, supra note 332, at 1184, 1192; Patrick Henry, Debates in Virginia Convention
(June 12, 1788), in 10 THE DOCUMENTARY HISTORY, supra note 332, at 1184, 1211; William Lenoir, Debates in North Carolina Convention (July 24, 1788), in 4 ELLIOT‘S
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Virginia Convention, where the Anti-Federalists charged that the
President and northern Senators could (and probably would) give
away American navigation rights on the Mississippi River.388 This
charge was hammered home, over and over, by Anti-Federalist
heavyweights389 and came close to causing the defeat of ratification in this critical state.390
DEBATES, supra note 332, at 1, 27; Letter IV, A NUMBER OF LETTERS FROM THE FEDERAL
FARMER TO THE REPUBLICAN (Oct. 12, 1787), in 19 THE DOCUMENTARY HISTORY, supra
note 332, at 231, 232–33; Letter by an Officer of the Late Continental Army, supra note
376, at 211–12; Rawlins Lowndes, Debates in South Carolina Legislature and Convention
(Jan. 16, 1788), in 4 ELLIOT‘S DEBATES, supra note 332, at 253, 265–66; George Mason,
Debates in Virginia Convention (June 19, 1788), in 10 THE DOCUMENTARY HISTORY, supra
note 332, at 1387, 1390–91; George Mason, Objections to the Constitution of Government
formed by the Convention (Oct. 7, 1787), in 8 THE DOCUMENTARY HISTORY, supra note
332, at 43, 44–45; Joseph M'Dowall, Debates in North Carolina Convention (July 28,
1788), in 4 ELLIOT‘S DEBATES, supra note 332, at 1, 119, 124; James Monroe, Debates in
Virginia Convention, supra note 378, at 1115; William Porter, Debates in North Carolina
Convention (July 28, 1788), in 4 ELLIOT‘S DEBATES, supra note 332, at 1, 115; Reply to
Cassius by Brutus, VA. INDEP. CHRON., May 14, 1788, reprinted in 9 THE DOCUMENTARY
HISTORY, supra note 332, at 798, 800–01; Samuel Spencer, Debates in North Carolina
Convention (July 28, 1788), supra note 385, at 124–25; The Dissent of the Minority of the
Pennsylvania Convention, supra note 379, at 30.
388. See William Grayson, Debates in Virginia Convention (June 12, 1788), supra note
387, at 1191–92.
389. See, e.g., John Dawson, Debates in Virginia Convention (June 24, 1788), in 10 THE
DOCUMENTARY HISTORY, supra note 332, at 1473, 1492–93; William Grayson, Debates in
Virginia Convention (June 12, 1788), in 10 THE DOCUMENTARY HISTORY, supra note 332,
at 1184, 1192; William Grayson, Debates in Virginia Convention (June 18, 1788), supra
note 374, at 1382–83; William Grayson, Debates in Virginia Convention (June 24, 1788),
in 10 THE DOCUMENTARY HISTORY, supra note 332, at 1473, 1496; Patrick Henry, Debates
in Virginia Convention (June 12, 1788), supra note 387, at 1211–12, 1220; Patrick Henry,
Debates in Virginia Convention (June 9, 1788), in 9 THE DOCUMENTARY HISTORY, supra
note 332, at 1050, 1051; Patrick Henry, Debates in Virginia Convention (June 7, 1788), in
9 THE DOCUMENTARY HISTORY, supra note 332, at 1006, 1039; George Mason, Debates in
Virginia Convention (June 18, 1788), supra note 377, at 1380–81; George Mason, Debates
in Virginia Convention (June 19, 1788), in 10 THE DOCUMENTARY HISTORY, supra note
332, at 1387, 1390–91; James Monroe, Debates in Virginia Convention (June 13, 1788), in
9 THE DOCUMENTARY HISTORY, supra note 332, at 1228, 1235. The Anti-Federalists made
the same charge in the North Carolina Convention. See, e.g., Jas. Bloodworth, Debates in
North Carolina Convention (July 29, 1788), in 4 ELLIOT‘S DEBATES, supra note 332, at 1,
167–68; William Porter, Debates in North Carolina Convention (June 28, 1788), supra
note 387, at 115.
390. This was obviously a tactical maneuver aimed especially at the delegates from
Kentucky, who were a swing bloc in the closely divided convention, see, e.g., 1 ALBERT J.
BEVERIDGE, THE LIFE OF JOHN MARSHALL 399, 405–06, 431 (1916); MARKS, supra note 46,
at 197–98, but the charge also had substance. As noted above, in 1786 Congress voted seven states to five, on purely sectional lines, to authorize Jay to cede navigation rights on the
river to Spain for twenty-five to thirty years. See MARKS, supra note 46, at 29–30. The
problem for the Anti-Federalists in the Virginia Convention was that the 1786 vote on
yielding the Mississippi River had led to the constitutional requirement for a two-thirds
Senate vote to approve treaties. BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 80; Bestor, supra note 204, at 97–98. The Anti-Federalists‘ rejoinder was that, unlike the Articles,
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The intensity with which the Anti-Federalists attacked every
perceived power of the President highlights the complete lack of
discussion of the Receive Ambassadors Clause. If anyone had
supposed, as Hamilton asserted as Pacificus in 1793, that this
Clause gave the President the discretionary power to recognize
foreign governments, with the consequent power to unilaterally
nullify treaties with nations whose governments he or she did not
recognize,391 the Anti-Federalists almost surely would have challenged this zealously; and the Federalists would have had to explain how such an innocuous looking clause actually vested important and unchecked powers in the President. The executive
vesting clause theory would have presented even greater problems for the Federalists. The Anti-Federalists‘ attack on executive
power, and the Federalists‘ defense (as in The Federalist itself)392
focused entirely on the enumerated powers specifically given to
the President in the Constitution.393 The common premise of this
debate was that executive powers were limited to those listed in
Article II. If anyone thought the Executive Vesting Clause might
provide a residuum of additional, unspecified, and unchecked
powers to the President, that was a closely held secret. Given the
extent of public opposition to the Constitution, the fears of a president with prerogative powers, and the close votes in favor of ratification in such key states as New York, Virginia, and Massachusetts, an assertion by the Federalists that one person would
which required two-thirds of all states to agree to a treaty, the Constitution required the
approval only of two-thirds of the Senators ―present.‖ They then constructed scenarios in
which the Senators from the seven northern states, or perhaps even five, could approve a
treaty that would cede navigation rights in the Mississippi and lead to the dissolution of
the Union. See MARKS, supra note 46, at 34. With a Senate of twenty-six members, only
fourteen present would be a quorum. If all fourteen were from northern states, the treaty
could be approved by seven states. Even if some senators from southern states were
present, ten senators from five northern states (two-thirds of the fourteen present) could
approve the treaty. This argument failed not because of any inherent trust in the President or in the northern states, but because the scenario presupposed a fantasy: that the
southern senators would either fail to show up for such a critical vote, or would be bribed
to support a treaty that would be disastrous for their states. That is, this Anti-Federalist
argument barely failed. Only four of the fourteen delegates from Kentucky voted to ratify
the Constitution, see 1 BEVERIDGE, supra, at 432, but the Anti-Federalists understood that
they needed the support of the entire Kentucky delegation, id. at 442–43. The four votes
from Kentucky made the difference in the crucial vote (88–80) on George Wythe‘s motion
to vote on the Constitution without the precondition of prior amendments. Id. at 475.
391. Pacificus No. 1, supra note 68, at 41.
392. See RAMSEY, supra note 4, at 122 (noting that in his discussion of the presidency,
Hamilton omitted any claim that the Executive Vesting Clause is the source of any power).
393. See supra Part III.E.
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possess such unspecified powers, without any check by Congress,
might have endangered ratification of the Constitution.
IV. THE OMISSION
In the records that I have examined, there is no affirmative
evidence that those who participated in drafting or ratifying the
Constitution understood that this organic document would give
the President the power to recognize foreign states or governments. On the other hand, extreme care must be taken in drawing conclusions from silence, and I do not believe that one can assert with confidence that there was a contrary understanding to
deny that power to the President.
The importance of recognition to the United States and the establishment of diplomatic relations during the Confederation period make mysterious the total absence of discussion of these issues by those who participated in the drafting and ratification of
the Constitution. A natural assumption is that the founders
would have paid special attention to these powers—and in particular, to which branch of government should exercise them. Instead, we are faced with an originalist vacuum.
One explanation for this silence is that the founders carefully
enumerated the powers of the President and deliberately omitted
the recognition power. That explanation is consistent with the entire tenor of the ratification debates. But if the Constitution was
understood as denying the recognition power to the President,
one would expect some record of such a significant decision to limit executive power. No such record has been found. There is
another plausible explanation for this silence.
Recognition is important for a new state or government to be
accepted into the community of nations. It is a necessary, but not
sufficient, prerequisite for establishing normal diplomatic relations and securing favorable treaties and alliances with members
of that community.394 The problem facing the United States during the Confederation period was obtaining that acceptance from
the nations of Europe.395 There was no question of the authority of
the United States to ―recognize‖ the European nations and their
394.
395.
General Principles, 1 Moore DIGEST, supra note 4, § 27, at 72.
See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 64–65.
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monarchies, which had existed for centuries, and mutually recognized each state and government in the 1648 Treaties of Westphalia.396 Whether the European nations would accept the United
States into their community was of considerable importance to
the new nation, but whether the United States would ―recognize‖
the European nations was a nonsequitur.
As an example, consider the Treaty of Peace. In article I of that
treaty, King George III, on behalf of Great Britain, recognized the
independence of the United States.397 Suppose that the American
commissioners had proposed, for article II, that the United States
recognized the independence of Great Britain and George III as
that country‘s head of government. That would have been, well,
laughable.
There is no evidence in the existing records that the founding
generation foresaw a situation in which the United States would
have to decide whether to recognize a new state or government.
This would indeed occur, and fairly quickly, in the revolutionary
overthrow of monarchical rule in France and the resulting cataclysm that engulfed Europe for a generation.398 These events
would put the United States in the position of having to make decisions on recognition and diplomatic relations that, if done mistakenly, could have involved the country in war. But these events
were not foreseen, certainly not as happening in the early stages
of the Republic‘s history. Unless we are to attribute clairvoyance
to the founders, it is understandable that they would concentrate
on the clear and pressing issues of creating a new government, as
opposed to theoretical questions of power that could be expected
to arise, if at all, in a distant future. It is quite possible that the
recognition power was not discussed in the drafting and ratification of the Constitution because it was not then considered particularly relevant to the new Republic.
V. CONCLUSION—AND POSTSCRIPT
The Constitution, by its terms, does not give the President the
power to recognize foreign states or governments. Such a power is
396.
13.
397.
398.
See HERRING, supra note 11, at 12–13; Prakash & Ramsey, supra note 4, at 312–
Definitive Treaty of Peace, supra note 218, at art. I, 8 Stat. at 80.
See BEMIS, A DIPLOMATIC HISTORY, supra note 11, at 94–95.
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said to derive from four sources, but this paper refutes those
claims. There is no recorded evidence that any of the participants
in the drafting and ratifying of the Constitution—Federalists and
Anti-Federalists alike—understood that any provision in the
Constitution vested such a power in the presidency, and certainly
not a power that is plenary in nature. On the other hand, one
cannot conclude with confidence that the founders deliberately
denied such a power to the President. If such an executive power
does exist, either as plenary or subject to congressional override,
its constitutional source must be found in post-ratification theory
and practice.
A void was left in the Constitution, and it was addressed in the
first instance by the Washington administration. The recognition
of the revolutionary government of France and reception of its
minister were part of a larger package of actions (also including
the interpretation of the treaties with France, the issuance of the
Neutrality Proclamation and Rules on Neutrality, and the control
over diplomacy and diplomats) by which our first President exercised control over foreign policy in a crisis that threatened to
draw the nation into European wars. How Washington asserted
such executive authority and the source of constitutional power
upon which he relied are the subjects of my next paper.