Page:Zivotofsky v. Kerry.pdf/36

36

security, and provid[e] against invasions.” The Spirit of the Laws bk. XI, ch. 6, p. 151 (O. Piest ed., T. Nugent transl. 1949). In fact, “most writers of [Montesquieu's] tim[e] w[ere] inclined to think of the executive branch of government as being concerned nearly entirely with foreign affairs.” W. Gwyn, The Meaning of the Separation of Powers 103 (1965).

That understanding of executive power prevailed in America. Following independence, Congress assumed control over foreign affairs under the Articles of Confederation. See, e. g., Articles of Confederation, Art. IX, cl. 1. At that time, many understood that control to be an exercise of executive power. See Prakash & Ramsey 272, 275–278. Letters among Members of the Continental Congress, for instance, repeatedly referred to the Department of Foreign Affairs, established under the control of the Continental Congress, as an “Executive departmen[t]” and to its officers as “ `Executives or Ministers.' ” Id., at 276, and nn. 194–196. Similarly, the Essex Result of 1778an influential report on the proposed Constitution for Massachusettsdescribed executive power as including both “external” and “internal” powers: The external executive power “comprehends war, peace, the sending and receiving ambassadors, and whatever concerns the transactions of the state with any other independent state,” while the internal executive power “is employed in the peace, security and protection of the subject and his property.” Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, pp. 324, 337 (O. Handlin & M. Handlin eds. 1966).

This view of executive power was widespread at the time of the framing of the Constitution. Thomas Rutherforth's Institutes of Natural Lawa treatise routinely cited by the Founders, McDowell, The Limits of Natural Law: Thomas Rutherforth and the American Legal Tradition, 37 Am. J. Juris. 57, 59, and n. 10 (1992)explained that “external exec-