Kevin P. Chapman has posted Washington Was Right: The Supreme Court Could Have Intervened to Interpret French Treaties on SSRN. Here is the abstract:
In the early days of his presidency, George Washington faced his first international crisis when French Ambassador Genet demanded that the United States honor its treaty obligations and provide support to the new French Republic in its ongoing war with Great Britain. Concerned about the legal effect that the French Revolution had on the viability of these obligations, Washington asked the Supreme Court to render an opinion. Chief Justice John Jay replied that the Constitution did not authorize the Supreme Court to render advisory opinions.
If Jay was correct, why did Washington, who presided over the very convention that produced the Constitution, think that the Court had the power? This paper concludes that Washington was at least partially correct. The first section chronicles the many instances where the justices have given extrajudicial advice and service to the other branches. The second section analyzes the text and structure of the Constitution and concludes that it is indeed proper for the Court or its members to render advisory opinions in certain limited circumstances.
Posted at 7:00 AM