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First Page

695

Last Page

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Document Type

Article

Abstract

The most important, rightly influential, early interpretations of the Constitution on presidential power concerning matters of war, peace, and foreign affairs flowed from the able pen of Alexander Hamilton in three sets of pseudonymous public essays: as “Publius” in The Federalist (1787–1788); as “Pacificus” (1793–1794); and “Camillus” (1795–1796). As Publius, Hamilton expounded a broad understanding of presidential constitutional power generally and of presidential power in war and foreign affairs specifically, including an essentially plenary Commander-in-Chief power over the conduct of authorized war (but with no constitutional power to initiate war: that power being explicitly and exclusively assigned to Congress). As Pacificus, Hamilton set forth a systematic, sustained, and successful defense of the constitutional propriety of President Washington’s 1793 Neutrality Proclamation with respect to the war between Britain and France and, in the process, a pathbreaking understanding of “[t]he executive Power” of Article II more generally. As Camillus, Hamilton defended the constitutional propriety and self-executing legal effect of the Jay Treaty of 1795, persuasively delineating the respective powers of the executive and legislative branches in the constitutional treaty-making process. This short Essay first explains the probative relevance and force of Hamilton’s writings within a framework seeking to ascertain the objective, original public meaning of the words, phrases, and structural logic of the Constitution’s text. Hamilton’s expositions are not probative simply for reasons of “framer veneration” or because they, in any meaningful and reliable sense, constitute “legislative history” of the Constitution on these issues. Rather, they are relevant because they display (roughly) contemporaneous use of the document’s language, reflect the learned (and lucid) understandings of a truly impressive constitutional interpreter, and (in a sense) represent the considered views of the executive branch—the Washington administration—in implementing the Constitution. The Essay then examines Hamilton’s early, expert, and (sometimes) executive explication of the Constitution in the important areas of war, peace, and foreign affairs, and briefly defends Hamilton’s readings as the correct understandings of the document on the questions discussed.

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