Monday, July 24, 2017

Arlyck on the Courts and Foreign Affairs at the Founding

Kevin Arlyck has published The Courts and Foreign Affairs at the Founding in the BYU Law Review 2017: 1-65.  From the introduction:
In contrast to standard presidentialist accounts of how institutional responsibility for foreign affairs was distributed among the branches of the nascent federal government, this Article demonstrates that during the nation’s first major foreign affairs controversy following ratification–known as the Neutrality Crisis–the Washington administration actively sought to enlist the help of the federal judiciary in managing a diplomatic emergency with dangerous implications.  In particular, cabinet officials argued to skeptics at home and abroad that judicial resolution of disputes over British vessels captured by French privateers was consistent with both domestic constitutionalism and customary international practice. In so  doing, the  administration  sought  to  transform  a  sensitive  controversy over the nature of sovereign rights in wartime into a series of ordinary legal disputes over private property–disputes that the Constitution, Thomas  Jefferson  insisted,  “ascribed to the Judiciary alone.”

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