A comparison of Blackstone’s chapter on the king’s powers and authorities and the U.S. Constitution leaves little doubt that Blackstone influenced the form the Constitution took. Almost every single prerogative discussed is specifically assigned somewhere in the Constitution114: to send ambassadors (president and Senate);115 to receive ambassadors (president);116 to make treaties, leagues, and alliances (president and Senate);117 to make war and peace (Congress
114. Compare supra notes 101–07 and accompanying text, with infra notes 115–29 and accompanying text.
115. U.S.CONST. art. II, § 2, cl. 2 (“[A]nd he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls . . . .”).
116. Id. art. II, § 3 (“[H]e shall receive Ambassadors and other public Ministers . . . .”).
117. Id. art. II, § 2, cl. 2 (“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .”).
has the power to declare war, the president to wage it);118 to issue letters of marque and reprisal (Congress);119 to veto legislation (president subject to override);120 to be commander in chief (president);121 to raise and regulate fleets and armies (Congress);122 to erect forts and similar buildings (Congress);123 to grant titles of nobility (specifically forbidden);124 to naturalize aliens (Congress);125 to create offices (Congress);126 to regulate commerce and weights and measures, and to
118. Id. art. I, § 8, cls. 1, 11 (“The Congress shall have Power . . . To declare War . . . .”); id.
art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . .”).
119. Id. art. I, § 8, cls. 1, 11 (“The Congress shall have Power . . . To . . . grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water . . . .”).
120. The veto power and its override are delineated as follows:
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Id. art. I, § 7, cl. 3.
121. Id. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . .”).
122. Id. art. I, § 8, cls. 1, 12–14 (“The Congress shall have Power . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy; [and] To make Rules for the Government and Regulation of the land and naval Forces . . . .”).
123. Id. art. I, § 8, cls. 1, 17 (“The Congress shall have Power . . . to exercise [exclusive]
Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings . . . .”).
124. Id. art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States . . . .”).
125. Id. art. I, § 8, cls. 1, 4 (“The Congress shall have Power . . . To establish an uniform Rule of Naturalization . . . .”).
126. Id. art. II, § 2, cl. 2 (noting that offices are “established by Law”); see also id. art. I, § 8, cl. 18 (“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”).
coin money (Congress);127 to institute judicial tribunals (Congress);128 and to nominate and appoint judges (president and Senate).129
If the Framers assigned all or nearly all of the known prerogative powers, it is not clear why any of them would have thought it necessary to create a residual grant of powers. The most serious objection to this observation is that many foreign affairs powers are nonetheless missing. Yet Blackstone himself wrote that the king had all of the foreign affairs powers but then numbered among the king’s relevant prerogatives—he called them the “principal” prerogatives relating to foreign intercourse130—only those that also happened to find their way into the Constitution.
More still, the delegates in the Constitutional Convention likely did not think these powers were missing. As the delegates were debating the Committee of Detail draft, which gave the Senate the power over treaties and ambassadorial appointments,131 Charles Pinckney observed that “the Senate is to have the power of making treaties & managing our foreign affairs.”132 He later opposed giving the House a say in the decision to “make war,” stating that “[t]he Senate would be the best depositary” of this power, “being more acquainted with foreign affairs, and most capable of proper resolutions.”133 Earlier in the proceedings, James Wilson described the powers over foreign commerce and war and peace to be the principal foreign affairs powers:
“Every nation attends to its foreign intercourse — to support its commerce — to prevent foreign contempt and to make war and peace.
Our senate will be possessed of these powers, and therefore ought to be dignified and permanent.”134 These two delegates seemed to believe
127. Id. art. I, § 8, cls. 1, 3, 5 (“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . . To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures . . . .”).
128. Id. art. I, § 8, cls. 1, 9 (“Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court . . . .”).
129. Id. art. II, § 2, cl. 2 (“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States . . . .”).
130. BLACKSTONE, supra note 12, at 253.
131. 2 FARRAND, supra note 19, at 183 (“The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the supreme Court.”).
132. Id. at 235.
133. Id. at 318.
134. FARRAND, supra note 19, at 432–33 (reporting Yates’s notes). Madison recorded more of Wilson’s explanation:
that power over ambassadorial appointments, treaty making, war and peace, and foreign commerce conveyed all the relevant foreign affairs powers.
In fact, it appears that the power to make treaties may have included the power to “treat” with foreign nations generally. The Committee on Postponed Matters, for example, considered the following resolution: “The Senate shall have power to treat with foreign nations, but no Treaty shall be binding on the United States which is not ratified by a Law.”135 At least in this formulation, the power to make treaties was included within the power to “treat.”
Samuel Johnson’s 1755 dictionary defined “to treat” as “1. To discourse; to make discussions . . . . 2. To practice negotiation . . . . 3.
To come to terms of accommodation . . . . 4. To make gratuitous entertainments.”136 To treat therefore would include a general power of “managing foreign affairs.” Of course, the ultimate power conferred in the Constitution was to make treaties; but this requires the nation to treat with other nations—that is, to engage in negotiations and general discourse. The power to treat generally might thus be implicit in the power to make treaties. Part IV revisits this issue in more detail, but for now it suffices to say that by assigning and distributing the
“principal”137 foreign affairs prerogatives mentioned by Blackstone, it appears the delegates thought they were sufficiently conferring all of the relevant foreign affairs powers, eliminating the need for a residual grant of power.