Trick or Constitutional Treaty?: The Jay Treaty and the Quarrel over the Diplomatic Separation of Powers
Abstract

Scholars have long recognized the Jay Treaty as a definitive, divisive moment in early American political culture. As the first treaty the U.S. negotiated with a European power under the Constitution, this moment also marked the first public debate over many of the Constitution’s foreign policy provisions. To a greater extent than has been traditionally acknowledged, the Jay Treaty debate was a controversy about which branch(es) of government would dominate American foreign policy.

This essay examines that debate, with a focus on Republican criticisms levied during the summer of 1795. While Republicans disapproved of the Jay Treaty for many reasons, they immediately and consistently charged the treaty was unconstitutional. The sum and spirit of their critique rested on the premise that the treaty violated the separation of powers. More specifically, Republicans maintained that President George Washington and the Senate had usurped their constitutional authority by exercising powers that were reserved to the legislature, or the Senate and House of Representatives in Article I Section 8 of the Constitution. The fight over the Jay Treaty quickly became about much more than the specific terms of the Jay Treaty or treaty-making in general; because the nation’s foreign and domestic affairs were intertwined, the Republican experiment itself seemed at risk. The debate over the Jay Treaty demonstrates the difficulty of putting abstract constitutional principles like the separation of powers into practice and reminds us that many precedents that would later be taken as givens remained undefined in the 1790s.


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