Taking the Constitution for a Test Drive

Today’s Constitution Day guest post was written by Jim Zeender, senior registrar in exhibits at the National Archives in Washington, DC.

The Constitution of the United States turned 226 this year and continues to be the oldest and longest-serving written constitution in the world. It consists of exactly 4,543 words and has been amended only 27 times.

At the conclusion of the Constitutional Convention in September 1787, the attendees had various opinions on the result of the Convention. Benjamin Franklin has probably been quoted most often from his speech that day, “I confess that I do not entirely approve this Constitution at present, but Sir, I am not sure I shall never approve it.”

John Adams was not present in Philadelphia.  He was in London, serving as the U.S. envoy to Great Britain. Adams received a copy of the new constitution from Massachusetts delegate Elbridge Gerry, and he later praised the Convention’s work in a letter to Jefferson, who was in Paris.

It seems to be admirably calculated to preserve the Union, to increase Affection, and to bring us all to the same mode of thinking. They have adopted the Idea of the Congress at Albany in 1754 of a President to nominate officers and a Council to Consent: but thank heaven they have adopted a third Branch, which that Congress did not. I think that Senates and Assemblies should have nothing to do with executive Power. But still I hope the Constitution will be adopted, and Amendments be made at a more convenient opportunity.  What think you of a Declaration of Rights? Should not such a Thing have preceeded the Model?
Letter from John Adams to Thomas Jefferson, November 10, 1787. Records of the Continental and Confederation Congresses and the Constitutional Convention. Text from the John Adams Papers on Founders Online.

Jefferson, too, saw much good in the Constitution. However, when writing to his good friend and fellow Virginian James Madison, he raised two major objections: the lack of a bill of rights and the failure to require a rotation in office—or as we would say today, term limits.

When a sufficient number of states had ratified the Constitution, the political power—invisible and intangible but real—was transferred from the Confederation Congress and individual states to the new Legislative, Executive, and Judicial branches.

While the new government attempted to organize itself and to gain standing at home and abroad, Thomas Jefferson, then in Paris as the American ambassador to France, planned what he thought would be a temporary return to Virginia. While en route, he learned that President George Washington wanted him to serve as Secretary of State. Jefferson did not take office until March of 1790, almost a full year after Washington became President.

Jefferson’s breadth of learning, and its practical application to the issues facing the new nation, proved invaluable. In a memorandum on adjourning Congress, Jefferson’s writing shows why Washington wanted him by his side as the new President attempted to build the first democratic government on a grand scale.

Every man, and every body of men on earth, possesses the righ[t] of self-government: they receive it with their being from the hand of nature. Individuals exercise it by their single will: collections of men, by that of their majority; for the law of the majority is the natural law of every society of men. When a certain description of men are to transact together a particular business, the times and places of their meeting and separating depend on their own will; they make a part of the natural right of self-government. This, like all other natural rights, may be abridged or modified in its exercise, by their own consent, or by the law of those who depute them, if they meet in the right of others: but so far as it is not abridged or modified, they retain it as a natural right, and may exercise it in what form they please, either exclusively by themselves, or in association with others, or by others altogether, as they shall agree.

Letter from Jefferson to George Washington, July 15, 1790.  Records of the Department of State, Miscellaneous Records. Text from the Jefferson Papers on on Founders Online.

Separation of Powers

Four years later, Washington feared being drawn into a world war when the conflict between France and Great Britain threatened to entangle the young republic.  Jefferson was inclined toward France, but his political foe, Secretary of the Treasury Alexander Hamilton, leaned toward Great Britain. The President, however, signed a Neutrality Proclamation on April 22, 1793.

Washington and his advisers found that a proclamation alone would not be enough—many questions remained.  Jefferson, Hamilton, Edmund Randolph, and Secretary of War Henry Knox compiled questions on the subjects of commerce and neutrality and sent the list to the Supreme Court on July 18, 1793.

The Chief Justice [John Jay] & Judge Paterson are in Town. The former called upon me yesterday evening to know at what time he should receive my communications. I was embarrassed—but declared the truth, that by waiting for the Attorney General [Edmund Randolph], the business wch it was proposed to lay before them, was not fully prepared.

I shall expect to see you by nine; And as the Judges will have to decide whether the business wch, it is proposed to ask their opinion upon is, in their Judgment, of such a nature as that they can comply, it might save time if you were to draft something (before you come) that will bring the question properly before them

Note from George Washington to Thomas Jefferson, July 18, 1793. Records of the Department of State, Miscellaneous Letters. Text from the Washington Papers on Founders Online.

Not surprisingly, this was not a particularly good time to find members of the court at home. Not unlike Washington today in July and August, many fled the capital city of Philadelphia for cooler climes during the summer.  In fact, it was the international crisis that was keeping Washington and his advisers in town. In other years, Washington would spend the summer months at Mount Vernon and Jefferson would go to Monticello. Eventually, Jay was able to gather his fellow justices and responded for the Court:

The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

Chief Justice John Jay to President George Washington, August 8, 1793. Record Group 59, Miscellaneous Letters (National Archives Identifier 5956319). Text from the Washington Papers on Founders Online.

Executive privilege

As the new year began in 1794, over 10 years had passed since the signing of the Treaty of Paris, which had ended the Revolutionary War.  However, problems continued between the fledgling United States and the naval power of Great Britain. British troops remained on American territory in the northwest territories, disputes over the northeastern boundary continued, and mistreatment of American seamen stressed relations between the two countries for another 20 years. Yet both also had interests in improving commerce and trade around the globe.

Since John Adams’s departure from London in 1788, the United States had been without representation at the Court of St. James. In early 1794, Washington decided to send an envoy to London to negotiate a new treaty addressing the problems that were poisoning America’s relationship with the former mother country. Washington chose Chief Justice John Jay, an old hand at European diplomacy. Jay had played a key role in negotiating the Treaty of Paris. He was also a man whom Washington trusted.

Once in England, Jay faced tough bargaining with British Foreign Secretary Lord William Grenville.  Eventually, he obtained British agreement to remove their troops from the Northwest as well as some minor trade concessions.  Washington had hoped for more but decided it was the best they could get. The public viewed the treaty differently, and Jay was treated with contempt and burned in effigy for failing to obtain free trade with British colonies and payment of Revolutionary War debts still owed to American citizens.

The Senate passed a resolution of advice and consent, but Washington found stiff opposition in the House of Representatives, then under the leadership of James Madison. This set up a confrontation between the executive and legislative branches when the House requested the executive papers pertaining to negotiation of the treaty. Washington asked Timothy Pickering for his advice on how to respond:

The resolution moved in the House of Representatives, for the papers relative to the negotiation of the Treaty with G. Britain having passed in the affirmative, I request your opinion,
Whether that branch of Congress hath, or hath not a right, by the Constitution, to call for those papers?
Whether, if it does not possess the right, it would be expedient under the circumstances of this particular case, to furnish them?
And, in either case, in what terms would it be most proper to comply with, or to refuse the request of the house?

Note from President George Washington to Heads of Departments and the Attorney General, March 25, 1796.  Record Group 59, Miscellaneous Letters (National Archives Identifier 7451551).

All the opinions advised against compliance with the House resolution, but the President sent the papers to Congress anyway.

Congress continues to cite its oversight responsibilities, its power of the purse, and treaty-making roles as justification for holding accountable the President and the entire executive branch. And the battles go on and will surely for many years to come.