Mr. President (37 page)

This draft, like the one in 1776, never received serious consideration, but four years later, when George Washington sent him a copy of the document produced by the Federal Convention, Jefferson offered
again his thoughts on the executive office. Writing from Paris to John Adams and James Madison, he exploded at the provision allowing the chief executive to serve an indefinite number of terms. “Their President seems a bad edition of a Polish king,” he complained to Adams, who had also missed the convention. “Experience concurs with reason in concluding that the first magistrate will always be re-elected if the constitution permits it,” he told Madison. “He is then an officer for life.” This, with his frustration at the lack of a Bill of Rights, caused him to “stagger,” although he supported most other features and generally approved the work of the convention. Two other caveats deserve note in light of his later positions. He would have preferred that the judiciary be granted veto power over legislation, either with the president or separately, and he believed that congressional representatives, because they were elected by popular vote, were “very illy qualified to legislate for the Union, for foreign nations &c.” He did not oppose popular elections per se; indeed, they were absolutely necessary if Congress were to have the power of taxation. He just thought that people so chosen “will not be adequate to the management of affairs either foreign or federal.” Who, then,
would
be adequate? The Senate? The president? Other executive officers? Jefferson did not elaborate.
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Jefferson’s first musings on the Constitution were offered from a distance; he was neither responsible for its contents nor positioned to change them. Soon, though, he would take more than an abstract interest in the allocation of powers. First as secretary of state, then as leader of the opposition party, and finally as president, he would come to view the Constitution through lenses colored by political strife.

In 1790, when Washington consulted Secretary of State Jefferson on whether the Constitution required the president to seek the advice of the Senate before dispatching foreign emissaries, Jefferson replied:

The implications of this reasoning were profound. If the Senate had no legitimate access to foreign communications, it certainly could not involve itself with setting foreign policy. Not only diplomatic missions were to be “left to the President,” but all relations with foreign nations, save only for declarations of war and ratifying formal treaties.

Yet in 1793, when Hamilton expressed a similar view in his Pacificus essays—the executive is the sole “organ of intercourse between the nation and foreign nations,” Hamilton argued, and with the exception of declaring war and ratifying treaties, “the
EXECUTIVE POWER
of the Union is completely lodged in the President”—Jefferson strenuously objected. By then the political landscape had changed. Pro-France representatives held a slim majority in the House, and Jefferson did not want this body to be excluded from setting foreign policy.
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While Jefferson had always maintained there were two exceptions to the president’s authority in the realm of foreign relations, declaring war and ratifying treaties, in 1796 he suddenly discovered a third exception. Since Jay’s Treaty dealt with commercial affairs, and since the Constitution granted Congress the power “to regulate Commerce with foreign Nations,” it followed that the treaty required approval not only from the Senate but from the House of Representatives as well. To James Monroe he wrote:

There were actually two issues here, one theoretical and the other practical. First, and most generally, the Constitution stated that treaties were to be treated as “the supreme Law of the Land,” and since all other laws needed to pass through both houses of Congress, treaties should have to go through the same process. If that did not convince,
a second argument hit more directly. A cardinal principle of republican governments, including this one, was that no expenditures of the people’s money could be made without approval from the people’s direct representatives, assembled in the House.

In order to affirm or deny the treaty, Jefferson and other Republicans argued further, Congress should have access to papers relevant to the negotiations. When a speech by Representative Albert Gallatin arguing for the requisition of documents from the executive branch appeared in the
Aurora
, Jefferson told Madison it was “worthy of being printed at the end of the
Federalist
, as the only rational commentary on the part of the constitution to which it relates.” In 1787, upon first view of the Constitution, he had complained that representatives in the House were “very illy qualified” to deal with foreign affairs, but now he was insisting they do so. In 1790, as secretary of state, he had maintained that the Senate was “not supposed by the Constitution to be acquainted with the concerns of the Executive department” and “it was not intended that these should be communicated to them,” but now he reasoned that a simple majority of the House and the Senate could declare virtually any treaty “constitutionally void” and that representatives and senators had a legitimate right to access any materials they wished so they could make up their minds.
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Jefferson’s argument in this case was historically weak but logically strong. According to Madison’s notes of the Federal Convention, when James Wilson moved on September 7 to give the House of Representatives as well as the Senate the power of advice and consent in treaty making, the motion was resoundingly defeated ten states to one; the convincing argument was the “necessity of secrecy in the case of treaties,” which even Wilson acknowledged. Yet the Constitution
did
declare treaties to be the law of the land, and more particularly it required that expenditures in any matter whatsoever receive House approval. The framers had clearly wanted the House not to be involved in treaty making, yet they had established rules which, if strictly followed, required that it would. This provided fertile ground for debate and turned constitutional arguments into political ones. Soon, as president, Jefferson would face the question of House approval for a treaty of his own doing, the Louisiana Purchase, and he would assume a very different stance when the House demanded papers from the executive department regarding his embargo.

President Jefferson would face other constitutional issues as well. Always, he had advocated a firm separation of powers, but what would he do when the judiciary, controlled by Federalists, exerted its own independence from the executive? He had been one of the most forceful advocates for the Bill of Rights and a leading opponent of the Alien and Sedition Acts, but could he stay within the limits of the Constitution while enforcing legislative acts and presidential policies? Addicted to careful reasoning, the nation’s third chief executive would have no shortage of arguments to support the positions he took, but walking that fine line between executive authority and republican principles would be no easier for him than for others. The delineation of executive powers “must be left to reason,” Jefferson had declared in his 1783 draft for a state constitution, but for a man exerting power in real-world situations, reason could and would turn fickle.

Shortly after noon on Wednesday, March 4, 1801, before some 1,140 dignitaries and commoners (154 were women) assembled beneath the arched roof in the new and spacious Senate chamber, Thomas Jefferson, dressed as “a plain citizen, without any distinctive badge of office,” delivered “in so low a tone that few heard it” an eloquent call for unity that would serve as a model for future inaugural addresses. The incoming president entreated his audience to “bear in mind this sacred principle”:

With words that have been cited countless times since, Jefferson declared, “We have called by different names brethren of the same
principle. We are all Republicans, we are all Federalists.” He then enumerated a list of “federal and republican principles” that would shape his administration: “attachment to union and representative government,” “equal and exact justice to all men,” “the right of election by the people,” “a wise and frugal government,” “the supremacy of the civil over military authority,” and so on. A few of these—“the honest payment of our debts,” “the support of the state governments in all their rights,” and “encouragement of agriculture, and of commerce as its handmaid”—could be construed as oblique jabs at Hamiltonian policies, but even these were phrased in ways that would not stir dissent. One, though, did appear pointed: “absolute acquiescence in the decisions of the majority,” a not-too-subtle reminder to Federalists of their recent electoral defeat and an enjoinder not to force the issue.
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How, exactly, would “we are all Republicans, we are all Federalists” translate into the business of governance?

Governance in the early Republic was not what we have come to expect today. Congress typically met in early December (sometimes a few weeks earlier), did its business, then adjourned in the spring. Sessions lasted three to six months; for the remainder of the year, the executive department, headed by the president, conducted all affairs of state. When Jefferson assumed office, the special session of Congress that had been called to usher him immediately adjourned, and members would not convene again for another eight months. Jefferson was left to administer the federal government under laws passed by Federalists.

His main task during that time was to appoint civil officers. Presumably, the president was to avoid partisan considerations and base his decisions solely on personal qualifications, but circumstances were not what the framers had imagined. After the bitter election and the Republicans’ ascension to power, all executive actions would be gauged politically. Should Jefferson try to mollify his opponents or satisfy his base? He received contradictory counsel. Some advised “giving offices to some of their [Federalist] leaders, in order to reconcile.” Others urged him to appoint only Republicans and remove Federalists already in office. William Branch Giles, the Republican Party leader in the House, advocated “a pretty general purgation of office.” Conciliation, he argued, “would produce general and lasting disgusts in its [the administration’s] best friends, and revive the hopes and enterprises of its enemies, for they are not dead.—They only sleep.”
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Jefferson tried to satisfy both camps. He promised to give new appointments “only to republicans,” but he shied from a wholesale purge of Federalist officeholders so as not to provide a rallying point for the opposition. He would, however, conduct a few “deprivations of office,” taking care to do so “gradually, & bottomed on some malversation or inherent disqualification”; the firings should not appear “to be made on the ground of political principle alone.” This strategy he announced to James Monroe on March 7, three days after taking office. Always, he stated, incoming Republicans should be “balancing measures according to the impression we perceive them to make.” In the end, he removed exactly sixteen Federalist officers “on political principles alone … to make room for some participation for the republicans,” he confessed to Joseph Nicholson, a Republican leader in the House. He would fire no more, for fear of jeopardizing “our object of harmonizing all good people of whatever description.”
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If Jefferson’s tactics were politically motivated, his hand was to some extent forced. Back on December 12, news had arrived in Washington that South Carolina had voted Republican, thus assuring Adams’s defeat, and for the next eighty-two days, until 9:00 in the evening of March 3, the outgoing president and Federalists in Congress worked at a feverish clip to overload the government with new appointees, all of their persuasion. On March 2 alone, Adams sent forty-two nominations to the Senate; the following day these were confirmed and sent hastily back to the president so he could sign them before relinquishing the office at midnight. This angered Jefferson exceedingly. Over and over in his letters, he recounted how “mr A” had “crouded in” his appointments “with whip & spur from the 12th of Dec. when the event of the election was known, (and consequently that he was making appointments, not for himself, but his successor) until 9. aclock of the night, at 12. aclock of which he was to go out of office.” It was an “outrage of decency,” he proclaimed, and he would consider every one of these appointments “nullities.”
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