Mr. President (29 page)

Hamilton continued his argument. Article II of the Constitution—“The executive Power shall be vested in a President”—was a general grant of power. While this grant was modified in a few specific instances, such as the Senate’s authority to ratify treaties and Congress’s power to declare war, “with these exceptions the
EXECUTIVE POWER
of the Union is completely lodged in the President.” Congress had already conceded as much during the great “removal debate” of 1789, he noted.
¹⁹

Secretary of State Jefferson was furious. Hamilton had thrown himself into a matter outside his field of authority, he had advocated a position with which Jefferson disagreed, he had claimed for himself the exclusive authority to interpret the Constitution, and, worst of all, he had used the occasion of Washington’s proclamation to promote executive powers that were antirepublican and dangerously expansive. As a fellow member of Washington’s “cabinet” (that word was just coming into use), Jefferson felt constrained from answering Hamilton directly, but he believed passionately that someone should. So he wrote to Madison, enclosing two of Hamilton’s articles:

With some reluctance, Madison agreed to rebut Hamilton. Adopting the pen name Helvidius (Helvidius Priscus was a Roman statesman allied with Brutus and Cassius), Madison penned six letters for the press that countered Pacificus point by point and shrank the executive back down to a size the author deemed more appropriate for a republican government. He detailed each of the powers granted to the executive by the Constitution and argued that none of them enabled the president, by himself, to issue a proclamation that determined matters of war and peace. The closest approximation to such a power was his authority to negotiate treaties, but this was a power he shared with the Senate, and logically it could not be construed as “executive.” To “execute” presupposed the prior existence of a law, or in this case a treaty, and in a republican government laws and treaties, which were binding on citizens and therefore required legal sanction, could not be deemed legitimate unless approved by the legislature. That’s why treaties needed Senate ratification. “Although the executive may be a convenient organ of preliminary communications with foreign governments, on the subjects of treaty or war, and the proper agent for carrying into execution the final determinations,” the president alone could not be the “essential agency which gives validity to such determinations.” True, the British monarch had such authority, but that only fed Madison’s most hard-hitting point: Hamilton had retreated from republicanism and wanted to base the U.S. executive on the concept of “
royal prerogatives
in the
British government
.” Madison had heard Hamilton state this in so many words at the Federal Convention, and now, although his adversary shied from terminology that would undercut his cause, he was still trying to nudge the new American government toward a British model.
²¹

Five years earlier, Hamilton and Madison had collaborated on
The Federalist
, often treated as the definitive explication of the views of
the framers. In that work, Madison had not addressed the president’s treaty-making power, but Hamilton, in
The Federalist
75, did expound on the matter, and his views there were diametrically opposed to those he now expressed:

The power to make treaties, he concluded, “seems therefore to form a distinct department,” partly executive and partly legislative. The executive was “the most fit agent” to negotiate a treaty, “while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” This applied not only to making treaties but also to all “foreign negotiations.” A president, who served for a limited time and would then have to return to the private sector, could be influenced by avarice or ambition, he admitted. It was therefore
“utterly unsafe and improper … to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States”
(emphasis added).

This was not far from the argument Helvidius was presenting in 1793, and Madison even closed his first essay by quoting Hamilton’s
Federalist
75 verbatim. That argument, unlike Hamilton’s later Pacificus argument, “was made at a time when no application to
persons
or
measures
” could lead to “bias,” Madison stated. In a sense, Madison had it backward. Now, when Hamilton expressed unqualified support for
executive power, he was revealing his true views, as he had outlined in his daylong speech at the Federal Convention; in the
Federalist
, by contrast, he had been playing to an audience, giving his readers the words he thought they should hear in order to support ratification, even though those words contradicted his deeply held preference for the primacy of executive power.
²²

That Madison and Hamilton could hold such differing interpretations of the Constitution should come as no surprise. In fact, there was no easy answer to the conundrum of who, in a republican form of government, should control the nation’s relations with “the rest of the world.” Delegates had found that out at the Federal Convention. From the outset, when Wilson first proposed a single executive, they resisted giving him the powers of “peace & war &c.,” to use Charles Pinckney’s language, as summarized by Madison in his notes. When the Committee of Detail allocated powers early in August, it allowed the president to “receive ambassadors,” but that was the extent of executive involvement in foreign policy. It entrusted the Senate with the power to “make treaties” and “appoint ambassadors,” and it gave the shared power to “make war” to the Senate and the House. According to that draft, the Senate would likely take the lead in shaping foreign policy.
²³

Not until Gouverneur Morris and the Committee of Eleven reported to the convention floor on September 4 did the president acquire the power to make treaties and appoint foreign officers, and even then he would need Senate approval on both counts. If James Wilson had had his way, treaties negotiated by the president would have required ratification by the House as well. Other laws needed approval from both houses of Congress, and “as treaties are to have the operation of laws,” he argued, “they ought to have the sanction of laws also.” Wilson’s motion for House ratification, though based on sound logic, failed by a vote of ten states to one. Delegates believed that since House members stood for election every two years, that body lacked the permanency necessary to establish a stable foreign policy, and even Wilson admitted that the House, because it was the larger branch of Congress, might compromise the “secrecy” appropriate to international negotiations.
²⁴

That left the House of Representatives, the only body directly elected by the people, with a limited role in shaping foreign policy: it could declare and fund war, but these were its only specified powers.
This was something of an embarrassment for a republican government, but when Pierce Butler and Elbridge Gerry moved “to give the Legislature power of peace, as they were to have that of war,” their motion failed to garner the support of a single state delegation. The motion was not even discussed.
²⁵

Who, then,
did
hold the “power of peace”? The president, with the concurrence of two-thirds of the Senate, could negotiate a treaty to end a war, but that was only the most literal aspect of the “power of peace.” More broadly, who had the responsibility of keeping the nation
out
of war? This large and fundamental question was never fully explored at the Federal Convention. Even after two critical powers—making treaties and appointing ambassadors—were switched by the Committee of Eleven from one branch to another, delegates failed to address the issue of who would formulate an
overall
foreign policy, one that encompassed the possibilities of both war and peace. This allowed Hamilton, writing as Pacificus six years later, to proclaim, by his own interpretation, that while Congress had the “right to make war,” it was the duty of the president “to preserve peace till war is declared.” While that sounded like a tidy solution, it begged the larger question: Who was really in charge, anyway? Did the president command foreign policy during times of peace, while Congress assumed it during wartime? If so, then authority shifted in an instant, the moment war was declared, and this made little sense. In truth, the complex web of authority allowed no easy answers.
²⁶

The Constitution did not allocate the direction of foreign policy to one branch or the other, and because it didn’t, future government officials would be left to work out the details, case by case, argument by argument, crisis by crisis. Both the president and Congress, at different times, could and did take the lead in claiming special powers. In 1793, Washington decided, simply by doing so, that the president could issue what amounted to a proclamation of neutrality, but the following year Congress decided, also by doing so, that
it
could issue a proclamation of neutrality. For better or worse, the framers’ failure to address the general issue of foreign policy has resulted in a more evolutionary assignment of governmental powers than the presence of a written constitution would seem to imply.

Ironically, attempts to avoid the hostilities between Britain and France led to increased political hostilities here in America. Late in 1793
and early in 1794, acting on official orders, British ships seized almost 250 American ships and reportedly mistreated many of the captured seamen. Britain justified these seizures by claiming, correctly, that the United States was trading with France through the West Indies, but that justification did nothing to quell the popular outrage in America. Inhabitants of eastern seaports seethed at the British seizures, while some westerners, seeking access to and control over the Mississippi River, threatened to violate Washington’s neutrality order by joining a French expeditionary force to take the Mississippi region from Spain. Anti-British sentiment reached a fever pitch when newspapers reported that Lord Dorchester (formerly Guy Carleton), the governor-general of Canada, had told an assembly of Native Americans that Britain would be their ally if they waged war against the United States. Responding to popular pressure, Congress had to take some action to counter what Americans perceived as British aggression on both land and sea. Acting contrary to Washington’s proclamation, which enjoined Americans to remain “friendly and impartial” to both Britain and France, the House passed overwhelmingly a nonimportation bill designed to punish Britain by inhibiting its commerce. Step-by-step, the nation seemed to be moving toward war.

Just before that bill arrived at the Senate, Hamilton and a caucus of Federalist senators proposed to Washington that he dispatch a special mission to London to address American grievances. The president agreed, and using his constitutional power of appointment, he tapped John Jay, chief justice of the Supreme Court, to head the mission, but Jay was a political liability. Back in 1786 he had tried to bargain away American access to the Mississippi in return for favorable trade arrangements and stabilized boundaries with Spain, but his proposed treaty met with great resistance in the South and the West and was rejected by Congress. Now, when his nomination came before the Senate on April 19, 1794, opponents moved that it be shelved on constitutional grounds: “To permit Judges of the Supreme Court to hold at the same time any other office or employment, emanating from and holden at the pleasure of the Executive, is contrary to the spirit of the Constitution, and, as tending to expose them to the influence of the Executive, is mischievous and impolitic,” they argued. While that case would seem compelling to us today, Federalists in the Senate defeated the measure and confirmed the nomination.
²⁷

Jay’s appointment changed the political landscape, at least for the time being. Federalists argued persuasively that any measure intended to stifle British commerce would undermine Jay’s ability to reach an accord, and the nonimportation bill crumbled in the Senate without serious debate.

On the diplomatic front, Washington’s decision to send an envoy to Britain might well have prevented (or at least delayed) a war, but he paid a political price. Due to Jay’s unpopularity, whatever treaty he negotiated would be suspect from the start, and when Jay did return home with a paper in hand, wanting only ratification by the Senate, that paper raised a nationwide political storm.