One of the more enlightening exchanges in the oral argument in Zivotofsky v. Kerry focused on how Justice Story and Alexander Hamilton viewed the recognition power–was it only for the President, or did Congress have a role.
Justice Breyer, an unexpected originalist, kicks it off, with a quotation from Justice Story:
JUSTICE BREYER: If you take that position, 2 which explains it, then what do you think of Justice Story who writes in 1833 that, “The exercise of the prerogative of acknowledging new nations and ministers” and he makes clear that involves whether a city or a region is part of a country, et cetera, he says, it’s an executive function. Some argue, as we I think we’ve just heard, that Congress could make that decision, too, but that hasn’t been decided. And he concludes that, “A power so extensive in its reach over our foreign relations could not properly be conferred on any other than the Executive Department will admit of little doubt.” …
So he is saying, of course, you have to have one person deciding such a thing, and that has to be the Executive. That’s 1833, pretty knowledgeable about the founders’ intent.
The Chief took Breyer’s citation to Story, and raised him a Hamilton:
CHIEF JUSTICE ROBERTS: I suppose I suppose you could also say Hamilton in 1787 or whatever it was trumped Storey [sic] in 1830, right? I mean, he said pretty much the exact opposite, that the recognition provision was really just a trivial formality.
Alas, Ms. Lewin three some cold water on Alex:
MS. LEWIN: Hamilton also switched his position before he was in the administration and after he was in the administration.
If you wish to read more about the original understanding of the recognition power, please check out the 2015 Harlan Institute-ConSource Virtual Supreme Court competition, which focuses on just this question. The lesson plan is here.