Guest Essayist: Joerg Knipprath

Two weeks after the death of George Washington on December 14, 1799, his long-time friend General Henry “Light Horse Harry” Lee delivered a funeral oration to Congress that lauded the deceased as, “First in war- first in peace- and first in the hearts of his countrymen, he was second to none in the humble and endearing scenes of private life; pious, just, humane, temperate and sincere; uniform, dignified and commanding, his example was as edifying to all around him, as were the effects of that example lasting.” The Jeffersonian newspaper of Philadelphia, The Aurora, had a rather different opinion than those countrymen. Sounding like his current counterparts in their sentiments about today’s President, the publisher declared on Washington’s retirement from office in 1797, “[T]his day ought to be a jubilee in the United States … for the man who is the source of all the misfortunes of our country, is this day reduced to a level with his fellow citizens.”

Each author likely could point to examples to buttress his case. Washington wore many hats in his public life, and his last service, as President from 1789 to 1797, had its shares of controversies. Washington kept his private life just that to his best abilities, with the result that it soon became mythologized. In public, Washington was reserved (or “dull,” to his detractors), dignified (or “stiff,” to his detractors), and self-disciplined. Yet his usually even-tempered nature occasionally flared, which few were willing to risk. According to Samuel Eliot Morison, during the Philadelphia Constitutional Convention, Alexander Hamilton bet Gouverneur Morris a dinner that the latter would not approach Washington, slap him on the back, and say, “How are you today, my dear General?” Morris, the convention’s jokester, took the bet, but after the look that Washington gave him upon the event, professed that he would never do so again for a thousand dinners. Washington’s formality had its limits. A Senate committee proposed that the official address to the President should be, “His Highness the President of the United States of America and the Protector of the Rights of the Same.” The Senate rejected this effusive extravagance, and Washington was simply addressed as Mr. President.

On a later occasion, Morris wrote Washington, “No constitution is the same on paper and in life. The exercise of authority depends on personal character. Your cool, steady temper is indispensably necessary to give firm and manly tone to the new government.” Not only is this a correct observation about constitutions in general. A formal charter, the “Constitution” as law, is not all that describes how the political system actually operates, that is, the “constitution” as custom and practice. It is particularly true about Article II of the Constitution of 1787, which establishes the executive branch and delineates most of its powers. While some of those powers are set out precisely, others are ambiguous, such as the “executive power” and “commander-in-chief” clauses.

In several contributions to The Federalist, most thoroughly in No. 70, Hamilton explained how the Constitution created a unitary executive. He stressed the need for energy and for clarity of accountability that comes from such a system. In No. 67, he ridiculed “extravagant” misrepresentations and “counterfeit resemblances” by which opponents had sought to demonize the President as a potentate with royal prerogatives. Still, it has often been acknowledged that the Constitution sets up a potentially strong executive-style government. Justice Robert Jackson in Youngstown Sheet & Tube Co. v. Sawyer in 1952 described the President’s real powers, “The Constitution does not disclose the measure of the actual controls wielded by the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is…. Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations…. By his prestige as head of state and his influence upon public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.” Washington was keenly aware of his groundbreaking role and used events during his time in office to define the constitutional boundaries of Article II and to shape the office of the President from this “sketch.”

Washington’s actions in particular controversies helped shape the contours of various ambiguous clauses in Article II of the Constitution. He shored up the consolidation of the executive branch into a “unitary” entity headed by the President and guarded its independence from the Congress. From the start, Washington was hamstrung by the absence of an administrative apparatus. The Confederation had officers and agents, but due to its circumscribed powers and lack of financial independence, it relied heavily on state officials to administer peacetime federal policy. The new Congress established various administrative departments, which quickly produced a controversy over the removal of federal officers. Would the President have this power exclusively, or would he have to receive Senate consent, as a parallel to the appointment power? The Constitution was silent. After much debate over the topic in the bill to establish the Departments of State and War, a closely-divided Congress assigned that power to the President alone. Some opponents of the law objected that the President already had that power as chief executive, and that the statute could be read as giving him that power only as a matter of legislative grace, to be withdrawn as Congress saw fit.

Even if this removal power was the President’s alone by implication from the executive power in Article II, the same analysis might not apply to other officers. Congress had been clear to note that the departments in the statute were closely tied to essential attributes of executive power, that is, foreign relations and control over the military during war. The position of the Treasury Secretary, on the other hand, was constitutionally much more ambiguous, given Congress’s preeminent role in fiscal matters. The Treasury Secretary was a sort of go-between who straddled Congress’s power over the purse and the President’s power to direct the administration of government. The law that created the Treasury Department required the Secretary to report to Congress and to “perform all such services relative to the finances, as he shall be directed to perform.”

This implied that the Secretary was responsible to Congress rather than the President. If followed with other departments, this would move the federal government in direction of a British-style parliamentary system and blur the separation of powers between the branches. Washington resisted that trend, but his victory in the removal question was incomplete. It was not until the Andrew Jackson administration that the matter was settled. Jackson removed two Treasury Secretaries who had refused his order to transfer government funds from the Second Bank of the United States. While the Senate censured him for assuming unconstitutional powers, Jackson’s position ultimately prevailed and the censure was later rescinded. Still, controversy over the removal of cabinet heads without Senatorial consent flared up again after the Civil War with the Tenure of Office Act of 1867 and led to the impeachment of President Andrew Johnson in 1868. It was not until 1926 in Myers v. U.S. that the Supreme Court acknowledged the President’s inherent removal power over executive officers.

A matter of much greater immediate controversy during the Washington administration was the President’s Neutrality Proclamation in 1793. The country was in no position, militarily, to get between the two European powers fighting each other, Great Britain and the French Republic. To stave off pressure from both sides, and from their American partisans, to join their cause, Washington declared the United States to be neutral. Domestic critics charged that this invaded the powers of Congress. Hamilton, ever eager to defend executive power, wrote public “letters” under the appropriately clever pen name “Pacificus.” He set forth a very broad theory of implied powers derived from elastic clauses in Article II, primarily the executive power clause. In light of those powers and the President’s position as head of the executive branch, the President could do whatever he deemed necessary for the well-being of the country and its people, unless the Constitution expressly limited him or gave the claimed power to Congress. In this instance, until Congress declared war, Washington could declare peace.

Hamilton’s position made sense, especially as Congress met only a few weeks each year, while the President could respond to events more quickly. However, Hamilton did not go unchallenged. At the urging of Jefferson, a reluctant James Madison wrote his “Helviticus” letters that presented a much more constrained view of those same constitutional clauses. Hamilton’s asseverations have generally carried the day, although political struggles between Congress and the President over claimed executive excesses have punctuated our constitutional history and continue to serve as flashpoints today. Hamilton’s theory, and Washington’s application thereof, cemented the “unitary executive” conception of the presidency.

While generally silent on foreign affairs, the Constitution does address treaties. The power to make treaties was part of the federative power of the British monarch. Thus, at least from Hamilton’s perspective, the President could conduct foreign affairs and make treaties as the sole representative of the country. However, constitutional limits must be observed. Thus, the Senate has an “advice and consent” role. Originally, this was understood to require the President to consult with the Senate on negotiating treaties before he actually made one.

Washington tried this approach early in his administration. He and Secretary of War Henry Knox appeared before the Senate to discuss pending treaty negotiations with the Creek Indians. Rather than engaging the President and Knox, the Senate referred the matter to a committee. Washington angrily left, declaring, “This defeats every purpose of my coming here.” Twice more he sent messages to get advice on negotiations. Receiving no responses, Washington gave up even those efforts. Since then, Presidents have made treaties without prior formal consultation with the Senate. The Senate’s role now is to approve or reject treaties through its “consent” function. Of course, informal discussions with individual Senators may occur. The Senate’s similar formal advice role for appointments of federal officers likewise has atrophied.

Washington also used constitutional tools to participate effectively in domestic policy. For one, the Constitution obliged the President to deliver to Congress from time to time information on the state of the union and to recommend proposals. Washington used this opportunity for an annual report that he presented in person at the opening of each session of Congress. Presidents have continued this tradition, although, beginning with Jefferson, they no longer appeared personally until Woodrow Wilson revived the practice.

Another such tool was the President’s qualified veto over legislation. A potentially powerful mechanism for executive dominance, early Presidents used it sparingly. The controversy was over the permissible basis of a veto. Could it be used for any reason, such as political disagreement with the legislation’s policy, or only for constitutional qualms? Washington sympathized with the latter position, advocated by Jefferson. On that ground, he first vetoed an apportionment of the House of Representatives in 1791 that he believed violated the Constitution’s prohibition against giving a state more than one representative for every 30,000 inhabitants. Andrew Jackson eventually used the veto for purely political reasons, which has become the modern practice.

One more constitutional evolution that Washington set in motion involved government secrecy and the President’s right to withhold information from Congress and the courts, a doctrine known as “executive privilege.” It appears nowhere in the Constitution, but was recognized under the common law. There are two broad aspects to this doctrine. One is to protect the confidentiality of communications between the President and his executive branch subordinates. The other is to guard state secrets in the interest of national and military security. Again, under Hamilton’s implied powers, the President needs such privilege to carry out the duties of his office and to protect the independence of the executive branch. Two events during Washington’s administration gave an early shape to this doctrine.

In October, 1791, General Arthur St. Clair, the governor of the Northwest Territory took 2,000 men, including the entire regular army plus several hundred militia, to build a fort to counter attacks by an alliance of Indian tribes supported by the British. On November 4, St. Clair’s force, down to about 920 from desertion and illness, was surprised by the Indians and suffered 900 casualties in the rout, the great majority of them killed. The Indians also killed the 200 camp followers, including wives and children, in what became the worst defeat of the American army by Indians. To no one’s surprise, the House ordered an inquiry and sought various documents from the War Department relating to the campaign.

Washington consulted his cabinet in what was perhaps the first meeting of the entire body. With the cabinet’s agreement, Washington refused to turn over most of the requested documents on the ground that they must be kept secret for the public good. Thus was the state secrets doctrine incorporated into American constitutional government. A committee in the House eventually exonerated St. Clair and blamed the rout on poor planning and equipping of the force. The defeat of St. Clair was reversed by General Anthony Wayne with a larger force of 2,000 regulars and 700 militia in August, 1794, at the Battle of Fallen Timbers. That victory produced a peace treaty, which ended the Indian threat.

The second occurred when the House demanded that the administration disclose to them the instructions Washington had given to American negotiators regarding the unpopular Jay Treaty of 1794 with Great Britain. The President declined on grounds of confidentiality, relying on the Constitution’s placement of the treaty power in the President and Senate. The flaw with Washington’s argument was that the House had to appropriate funds required by the treaty. The House insisted on receiving the documents to carry out its constitutional appropriations function. Washington stood his ground, and the House grudgingly dropped the matter.

Any overview of the Washington administration requires at least a brief mention of the influence of Alexander Hamilton. Hamilton had long enjoyed Washington’s support, well before he became Secretary of the Treasury. His influence was well-earned. It is not uncommon for historians to refer to the United States of the 1790s as Hamilton’s Republic. Perhaps his signal achievement were his reports on the public credit and on manufactures, which Congress had asked him to prepare. The former, which he submitted on January 14, 1790, recommended that the foreign and domestic debt of the United States be paid off at full value, rather than at the depreciated levels at which the notes were then trading. As well, the United States would assume the states’ outstanding debts. The entirety would be funded at par by newly-issued bonds paying 6% interest. Import duties and excise taxes imposed under Congress’s new taxing power would provide the source to pay the interest and principal. Congress narrowly approved Hamilton’s proposal after he struck a deal with Jefferson that would place the new national capital in the South in 1800. The foreign debt was paid off in 1795 and the domestic debt forty years later.

The plan also established the Bank of the United States, modeled broadly on the Bank of England and the abortive Bank of North America, a venture by Robert Morris and Hamilton under the Articles of Confederation. Among other functions, the Bank would stabilize monetary excesses and protect American credit rating. Congress approved the Bank Bill in February, 1791. Hamilton’s recommendations in his Report on Manufactures, presented at the end of 1791, were not accepted by Congress. They eventually became the foundation for protectionist policies in favor of nascent domestic industries in the nineteenth century.

Washington’s last contribution to American constitutional development was his refusal to serve more than two terms. He had agreed only reluctantly even to that second term. His retirement was not the first time he had left office voluntarily even though he had sufficient standing to retain power. Years earlier, he had surrendered his command of the Army to Congress at the end of the Revolutionary War. The Constitution was silent on presidential term limits. Indeed, Hamilton had argued against them in The Federalist. By leaving the Presidency after eight years, Washington established the two-term custom that was not violated until Franklin Roosevelt in the 1940 election. Fear of such “third-termites,” made worse by FDR’s election to a fourth term, soon produced the 22nd Amendment, which formalized the two-term custom.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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