Executive Power and the Law of Nations in the Washington Administration

In this issue\u27s lead article, Professor Reinstein continueshis examination of the development of executive power over foreign affairs during the early history of the Republic. Re- cently, both legal scholars and the courts are looking to the actions of the first administrationas a potentialprecedent onhow to construe the scope and source of the President\u27s au- thority to determine and conduct the United States\u27 foreign policy. Last year, in an articlepublished in thisjournal,Pro-fessor Reinstein concluded that no originalistjustificationex-ists for a plenary executive recognitionpower. In this article, Professor Reinstein expands this discussion through an original historical and jurisprudential account of the Neutrality Crisis of 1792-1794 to draw three revisionist conclusions.First, he concludes that the Washington administration\u27s most plausible source of constitutional authority was the Executive\u27s duty, under the Take Care Clause, to obey the law of nations as expounded in the natural law treatises. Second, the Washington administration set a key precedent for the Executive\u27s duty to obey the constraints of international law. And third, since profound changes in the United States have shown that the founders\u27 way of thinking can be incompatible with our own, Professor Reinstein concludes that originalism is limited as a constitutional methodology and that theories of expansive executive powers must find foundations outside of the first President\u27s decision