“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”Article II, Section 2, Clause 3 of the United States Constitution.

Hello from Mt. Vernon Virginia!  In Federalist No. 67, Publius vigorously defends the above sentence in the U.S. Constitution, and uses the anti-federalists’ arguments against it as an example of their distortion of the powers of the presidency.

It is appropriate I should be writing from Mt. Vernon, Virginia today, as President George Washington made the first use of the power of the recess appointment in 1789, to fill several federal district court judgeships.  On July 1, 1795 President Washington made a recess appointment to appoint John Rutledge as Chief Justice of the United States Supreme Court, upon Chief Justice John Jay’s resignation to become Governor of New York.   Within 15 days of Chief Justice Rutledge’s recess appointment, Rutledge made a controversial speech attacking the Jay Treaty, saying he would rather see President Washington die, than sign the treaty! Chief Justice Rutledge’s tirade led many to believe he was mentally ill or intoxicated when he made the speech.  (for more on this story, see my source: http://www.senate.gov/reference/resources/pdf/RL31112.pdf, page 17).

Consequently, when Chief Justice Rutledge was nominated by President Washington for a full life term in December of 1795, Rutledge’s nomination was rejected by the Senate five days later by a vote of 10-14,  making him the shortest serving Chief Justice in United States History!

From the moment of its inception, the United States Constitution went to work. The checks and balances and separation of powers delineated in this great document provided boundaries even on our first and revered President, George Washington.  Imagine if the 24 hour news cycle had existed in President Washington’s time.  The story of Chief Justice Rutledge would have been covered non-stop, and his speech would have certainly been all over You Tube!  But despite the difference in technology, and the span of hundreds of years, our United States Constitution works much the same today as it worked at the time of its birth, like gears in a machine, steadily providing a check to one branch, and then another, with our liberty delicately balanced.

To the extent that one branch goes too far, and encroaches on another, or provides a check where none should be, it is not a failure of the machine, it is a failure of the energy behind the machine – “We the people.”   Our knowledge is power, and our power translated to action is energy!

Thank you Troy Kickler for your brilliant essay, and your continued participation in our 90 in 90 History Holds the Key to the Future project.

And thank you to our fellow Patriots and “guardians of the Constitution,” (Federalist No. 16) for participating in our blog!

On to Federalist No. 68,

Cathy Gillespie

Thursday, July 29th, 2010

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