14 I CHRONICLESnthe rules of law.” He defended this proposition withnreference to John Locke’s precepts on the “power to actnaccording to discretion for the public good, without thenprescription of law and sometimes against it,” and by citingnAbraham Lincoln’s multifarious wartime violations of lawnand Constitution, which show that “Somewhere in theninterstices of the Constitution, apparently — the alternativenis to regard Lincoln as some sort of usurper or dictator—nthe president is vested with a power that, in some circumstances,nresembles or approximates Locke’s prerogative.”nDr. Berns made much of the ruling of Justice CeorgenSutherland in U.S. v. Curtiss Wright Export Corporation, anNew Deal-era decision that recognized in the President then”sole organ of the federal government in the field ofninternational relations” and which has become the classicnSupreme Court case on the subject of presidential power innforeign policy.nPerhaps an even more aggressive statement of the doctrinenof presidential supremacy in foreign affairs was offerednby Dennis Teti, a staff member of the Iran-Contra committeenitself, in the Fall 1987 issue oi Policy Review. Whilenacknowledging that “Congress has a genuine but subordinatenrole to play in the formulation of foreign policy,” Mr.nTeti argued: “A close look at the Constitution shows that,nwhile the executive branch does not possess the entirety ofnforeign policy power, it has most of it. Under Article II,n’executive power’ is lodged in the president. By definitionnthe executive power comprehends the conduct of foreignnpolicy. The Framers found it unnecessary to define thenterm, but the inclusion of foreign policy under executivenpower is discussed at length in John Locke’s Two Treatisesnof Government, a fundamental source for the Founders.”nAside from the utility of such views in contemporarynpolicy disputes, however, there is little merit in them fromnthe perspective of traditional constitutional theory. Contrarynto Mr. Teti’s assertion of the implicit powers of the executivenbranch in foreign policy, the text of the Constitution rathernclearly grants to the Congress expansive powers in this areanas well as in defense matters and only restricted responsibilitiesnto the President. Article I, section 8 states that “thenCongress shall have power to . . . provide for the commonndefense and general welfare of the United States … tonborrow money on the credit of the United States … tonregulate commerce with foreign nations … to define andnpunish piracies and felonies committed on the high seas,nand offenses against the law of nations … to declare war,ngrant letters of marque and reprisal, and make rulesnconcerning captures on land and water … to raise andnsupport armies … to provide and maintain a navy … tonmake rules for the government and regulation of the landnand naval forces … to provide for calling forth the militianto execute the laws of the Union, suppress insurrections andnrepel invasions . . . [and] to make all laws which shall bennecessary and proper for carrying into execution the foregoingnpowers, and all other powers vested by this Constitutionnin the Government of the United States, or in any departmentnor officer thereof”nThe same article also forbids to the states any powers innforeign policy, and the next article governs the very limitednforeign policy prerogatives granted to the President. Thesenconsist only of being the Commander in Chief of the Armynnnand Navy, the power “by and with the advice and consentnof the Senate, to make treaties, provided two-thirds of thenSenators concur,” and the power to “nominate, and by andnwith the advice and consent of the Senate . . . [to] appointnambassadors, other public ministers and consuls.” It may bennoted that Alexander Hamilton in Federalist No. 69 considerednthe power of receiving ambassadors to be “more anmatter of dignity than authority” and “without consequencenin the administration of the government.” The veryncarefully expressed congressional limitations on the foreignnpolicy powers of the President and the specific authorizationnof extensive foreign policy powers for the Congress suggestnalmost conclusively that the Framers had no intention ofnpermitting the executive branch to carry out a foreign policynthat contravened the wishes of the Congress or at least ofnthe Senate, and that they intended the Congress to take anmajor role in the conduct of international relations andnnational defense.nThe argument that Locke’s view of executive powers is innsome way germane to the meaning of the Constitution isnnot only without merit but borders on absurdity. WhatevernLocke may have thought about executive power or thenconduct of foreign policy, it was not, according to constitutionalnhistorian Forrest McDonald, from his Two Treatisesnon Government that the Framers derived their view ofnexecutive power, but from Sir William Blackstone. “Experience,”nwrites McDonald, “was not an adequate guide, forntheir experience with colonial and state governors wasnlargely irrelevant to the task presently at hand. Hume wasnsilent on the subject, Montesquieu muddled, Locke toongeneral. That left Blackstone’s description of the royalnprerogative as the only readily available account of what hadntraditionally been regarded as the executive power in anmixed form of government.” The English jurist did indeednacknowledge that the executive power, lodged under thenBritish constitution in the crown, included the conduct ofnforeign relations and of war, including the right to declarenwar and make treaties without preliminary consent. Obviously,nthe Framers did not provide the American presidencynwith such powers, nor with the absolute veto of the Britishnking, which also belonged to the executive power innBlackstone’s view.nDr. Berns’s belief that “the conduct of foreign affairsnespecially cannot be subjected to the rules of law” has merit,nthough it is not a constitutional argument and might givenpause to other nations contemplating making treaties withnthe United States. Conservatives also might pause tonconsider the implications of foreign policy powers, lodgednexclusively in the chief executive and exempt from thenconstraints of law, as they would be exercised by a PresidentnJesse Jackson or Michael Dukakis. Nevertheless, the questionndoes not really concern the application of legalism tonforeign policy but rather the determination of which branchnof government is legally responsible for the conduct ofnforeign relations. To deal with Nicaragua as though it werenbound by the rights and obligations of U.S. law is indeed annabsurdity, but to determine who in the U.S. government isnultimately responsible for defining U.S. policy towardnNicaragua is an essential question that must be settled bynlaw in a state pretending to the title of a constitutionalnrepublic.n