Constitutional History, 1789–1801

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george washington was inaugurated the first President of the United States on April 30, 1789, in New York City. The First Congress, having been elected in February, was already at work. Most of the members were supporters of the Constitution. Fifty-four of them had sat either in the constitutional convention or in one of the state ratifying conventions; only seven were Anti-Federalists. A new government had been established. But in 1789 it was only a blueprint. The first business of the President and Congress was to breathe life into the Constitution. For a document of some 5,000 words, the Constitution was remarkably explicit and complete. Yet it left a great deal to the discretion and decision of the men entrusted with its care. They, too, were "founding fathers," for they transformed words engrossed on parchment into living institutions and defined the terms of debate on the Constitution.

james madison was the Federalist leader in the House of Representatives, where most of the formative legislation of the new government originated. Among the first statutes were those establishing the three executive departments: state, treasury, and war. Madison wrote into his bill for the department of state a provision authorizing the President to remove the department head, thereby precipitating the first congressional debate over interpretation of the Constitution. The document was clear on the President's power to appoint, with the advice and consent of the Senate, but silent on his power to remove executive officers. Removal being the reverse of appointment, some congressmen argued that it should follow the same course. But Madison contended, successfully, that the President's responsibility to see that the laws were faithfully executed necessarily included the removal power. The action of the House set an enduring precedent. Thus it was that in the first year of the new government an unwritten constitution, unknown to the Framers, grew up alongside the written constitution. (See appointing and removal power.)

Article II, it was sometimes said, had been framed with General Washington in mind; and so great was the confidence in him that Congress showed little jealousy of the chief executive. The act creating the treasury department, however, made its head responsible to Congress as well as to the President. This was recognition that "the power of the purse" was fundamentally a legislative power, and therefore the secretary of the treasury must answer to Congress in financial matters.

The judiciary act of 1789, which gave life to Article III, originated in the Senate. The act provided for an elaborate system of federal courts, created the office of attorney general, and in Section 25 authorized the Supreme Court to review on appeal decisions of state courts concerning questions of federal law involving the United States Constitution and the laws and treaties made under it. None of this had been settled in the Constitution itself, though Federalists said that Article III together with the supremacy clause of Article VI implicitly sanctioned Section 25.

The Federalists, with Madison in the lead, kept the promise made during the ratification campaign to add a bill of rights to the Constitution. Even before North Carolina and Rhode Island entered the new union, Congress approved twelve amendments and sent them to the states. Ten were ratified and on December 15, 1791, became part of the Constitution. In the founding of the nation the Bill of Rights was important less because it secured fundamental rights and liberties against the national government, which was without delegated power in this sphere, than because it strengthened public confidence in the government without impairing its powers as many Anti-Federalists had wished.

The principal executive offices were filled by thomas jefferson at state, alexander hamilton in the treasury, Henry Knox in the war department, and edmund randolph as the part-time attorney general. The unity of the executive was one of the claims made for it in the federalist. Washington worked closely with his subordinates, and depended on them for initiative and advice, but there was never any doubt that the executive power belonged exclusively to him. The Constitution made no provision for a "cabinet," nor was one contemplated at first. The President seemed to think, on the basis of the advice and consent clause, that the Senate was meant to function as an advisory council. In August he appeared personally in the Senate to ask its advice on a proposed treaty with an Indian tribe. But the process proved awkward and cumbersome. It was not repeated. The President, instead, conducted his business with the Senate in writing, and met his need for collective consultation and advice, particularly in foreign affairs, through the development of the cabinet. By 1793 it was an established institution. There were suggestions in the First Congress of a movement toward a generalized ministerial responsibility on the model of the treasury act; but this did not materialize. On the whole, the first presidency decisively enforced the theory of separation of powers, associated with congressional government, rather than the ministerial responsibility characteristic of parliamentary government. In 1791 the President exercised the veto power for the first time. The veto was potentially a means for controlling legislation, but Washington did not use it in that fashion (he vetoed only one other measure in eight years), and in the first forty years of the government Presidents used the veto sparingly.

The most important political and constitutional issues of Washington's first administration arose out of Hamilton's financial program. Exploiting his special relationship with Congress—conceiving of himself, indeed, as a kind of prime minister—Hamilton submitted a series of reports to Congress recommending measures to put the country's fiscal house in order, strengthen the government by appealing to the cupidity of the moneyed class, and stimulate the commercial and manufacturing sectors of the economy. His plan to fund the national debt at face value raised questions of equity between debtor and creditor interests but did not present a constitutional issue. The expectation of funding on the part of creditor groups had, of course, been a vital source of Federalist support for the Constitution. But Hamilton's plan also called for the assumption of the state debts. This proposal surprised many and aroused intense opposition in Congress, especially among Southerners sensitive to Anti-Federalist fears of undue concentration of power in the national government. Madison opposed Hamilton's plan, though on other grounds, and in doing so disclosed a division in the Federalist ranks on the direction of the new government. He was joined by his Virginia friend, Jefferson, who had just taken up his duties as secretary of state in the spring of 1790. Both were disposed to be conciliatory on this issue, however, and entered into a sectional bargain with Hamilton that would fix the permanent seat of government on the Potomac in exchange for the necessary southern votes to secure passage of the assumption bill. Still, the compromise failed to quiet Anti-Federalist fears. In December the Virginia legislature adopted a series of resolutions condemning the assumption of state debts as inimical to federal and republican institutions and pointedly questioning the constitutionality of the measure. Hamilton responded angrily. "This," he said, "is the first symptom of a spirit which must either be killed, or will kill the Constitution."

The constitutional question was brought to the fore a few months later on the bill to charter the bank of the united states. a national bank, as conceived and proposed by hamilton, would function as the financial arm of the government and multiply the active capital of the country by mounting a large paper circulation. because three-fourths of the initial bank capital would come in the form of public securities—securities issued to fund the debt—the institution was obviously an integral part of the funding system and would directly benefit the same creditor class. madison vigorously opposed the bill in the house, less on grounds of policy than on grounds of unconstitutionality. the power to incorporate a bank was not among the powers delegated to congress, nor could it be considered necessary and proper to execute those powers. But Congress adopted the bill and sent it to the President. Uncertain whether to sign or return it, Washington first sought the attorney general's opinion, which was adverse, and then requested Jefferson's. The secretary of state agreed with Madison and offered an even more emphatically strict construction of the Constitution. The government was one of strictly delegated powers, as declared in the tenth amendment still in the course of ratification. "To take a single step beyond the boundaries thus specifically drawn around the powers of Congress," Jefferson warned, "is to take possession of a boundless field of power, no longer susceptible to definition." To these objections Hamilton replied in a powerful opinion founded on the doctrine of implied powers, "Every power vested in a government is in its nature sovereign, and included, by force of the term, a right to employ all means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution …" (italics in original). The utility of a national bank in the execution of powers to tax, borrow money, and regulate commerce could not be denied. It was decisive in Hamilton's judgment. Washington concurred, and signed the Bank Bill into law.

In his Report on Manufactures, presented to the Second Congress, Hamilton extended his nationalist program by way of the general welfare clause. Believing that extensive domestic manufactures were necessary to the wealth and welfare of the nation, Hamilton proposed a comprehensive system of aid and encouragement—tariffs, bounties, inspections, export controls, drawbacks—which he justified under the power to provide for the general welfare. No legislation resulted from the report, but it produced consternation in opposition ranks. "If not only the means, but the objects [of the government] are unlimited," Madison wrote, "The parchment had better be thrown into the fire at once" (italics in original). Virginia's two senators introduced constitutional amendments to limit the application of the clause to the enumerated powers and deny the power of Congress to charter corporations.

Although the widening debate took its shape from the constitutional question, it involved much more. It involved the conflict of economic interests: debtors and creditors, landed property and fluid capital, the mass of people engaged in agriculture, and the enterprising class of merchants, bankers, and manufacturers. The fact that the former tended to be concentrated in the South, the latter in the Northeast, particularly in the coastal cities, gave the conflict a sectional character as well. The debate also involved competing strategies of economic development in the new nation, as well as contrasting ideas of the nature of freedom, the Union, and republican government. To an extent, certainly, the conflict was epitomized in the clash between the leading cabinet secretaries, Jefferson and Hamilton, who increasingly appeared as the protagonists of opposing doctrines and parties in the public eye. One despised, the other idolized governance. One located the strength of the republic in the diffuse energies of a free society, the other in the consolidation of the government's power. One believed that private interest corrupted public good, the other conscripted private interest for public benefit. One viewed the Constitution as a superintending rule of political action, the other, as a point of departure for heroic statesmanship. In the balance between authority and liberty, Hamilton was an apologist for the former, Jefferson for the latter. Hamilton feared most of the ignorance and turbulence of the people, while Jefferson preached "trust the people" and feared rulers independent of them.

The division on foreign policy deepened the division on domestic policy. Jefferson, Madison, and those who began to call themselves Republicans opposed British power and influence and openly championed the French Revolution. Hamilton and the Federalists, on the other hand, relied upon British trade, credit, and power to nurture American development; they feared the contagion of French ideas. The controversy over foreign policy assumed a constitutional dimension after Britain and France went to war in 1793. President Washington issued a proclamation pledging "a conduct friendly and impartial" toward the belligerents and warning citizens against hostile acts. Jefferson opposed this proclamation of neutrality, as it came to be known, principally because it tended to defeat his foreign policy objectives to oppose Britain and support France. As an ally, France had a right to expect friendship from the United States; Britain, on the other hand, might have been made to pay a price for American neutrality, as in recognition of "free ships make free goods" and related guarantees of neutral rights. Viewing a declaration of neutrality as the negative side of a declaration of war, Jefferson also held that the proclamation invaded the authority of Congress. The popular reception of the new French minister to the United States, Edmond Genêt, fueled criticism of the proclamation. Genêt himself took advantage of this sentiment by arming privateers in American ports and issuing military commissions to American citizens. Hamilton, under the pseudonym "Pacificus," wrote a series of newspaper articles in defense of the presidential proclamation. Broadly construing Article II, Hamilton maintained that all executive power is vested in the President unless specifically qualified or withheld. The power to declare war belonged to Congress, of course, but did not preclude unilateral actions by the President bearing on the exercise of that power. To Republicans such a power looked suspiciously like the British royal prerogative in foreign affairs. Taking up his pen in reply, Madison, as "Helvidius," argued that all matters touching on the war power are necessarily legislative; the executive, therefore, cannot initiate a course of action that, in effect, confronts Congress with a fait accompli. Whatever the abstract merits of Madison's argument, it gave too little weight to realities in the conduct of foreign affairs, which inevitably favored the executive.

In the absence of statute, executive officers decided difficult questions of neutrality as they arose. Thus it was that the cabinet became a permanent institution. Jefferson and Hamilton were usually at odds, causing many split decisions. On July 18, 1793, the officers submitted to the Supreme Court a list of twenty-nine questions about international law. The Justices declined to rule, however, thereby setting a precedent against advisory opinions. The cabinet hammered out its own administrative law of neutrality, which prevailed until Congress convened and enacted the Neutrality Act of 1794.

Long before that the firebrand French minister had been recalled and Jefferson had retired from the government, ensuring Hamilton the same ascendancy in foreign affairs he had earlier enjoyed in domestic affairs. The upshot was jay ' streaty, negotiated in London in November 1794 and ratified by the Senate six months later. The treaty preserved peace with Britain but, in Republican opinion, at the cost of submission to British maritime power and risk of war with France. Like every great issue of Washington's presidency, the treaty caused significant constitutional debate. Because some provisions required appropriations to carry them into effect, the treaty came under the scrutiny of the House of Representatives. In this connection a Republican majority demanded that the President lay before the House a copy of the instructions given to john jay and other pertinent documents. The President emphatically rejected the call, holding that the House had no constitutional power with respect to treaties. The House, after reiterating its position and carefully differentiating the appropriation power from the treaty power, which it disclaimed, proceeded to vote the money requested by the President.

The protracted battle over Jay's Treaty set the stage for the presidential election of 1796. Washington's decision to retire after two terms lifted the last restraint on partisanship, and two infant political parties, each with its own standard bearer, john adams for the Federalists, Jefferson for the Republicans, contested the election. The Constitution had been intended to work without parties. Parties, the Framers reasoned, fed the natural turbulence of the populace and served the ambitions of demagogues; they caused implacable rivalries in legislative councils, usurping the place of reason and moderation; they introduced whole networks of partisan allegiance at cross-purposes with the national welfare. Washington had attempted to govern independently of parties, but in an increasingly polarized political environment even he became a partisan. When the Republicans sought to channel popular enthusiasm for the French cause into "democratic societies," Washington publicly condemned the societies as illicit political engines, thereby betraying intolerance of political opposition from outside the constitutional channels of authority. washington ' s farewell address pointedly warned the people against the "baneful" effects of parties. The Republicans, however, were rapidly discovering in party organization outside the government the appropriate means for wresting power from the Federalists who, in their eyes, were the real bane of the country.

Adams was elected President by a slender electoral college majority. Crisis with France, mounting since the British treaty, set the course of the administration. Angrily denouncing French decrees against American commerce, Adams sent a special commission to negotiate in Paris under threat of war. Intriguing agents of the French foreign ministry demanded money as the price of negotiations. The Americans indignantly refused. This affair—the XYZ Affair—then exploded in the United States, and the Federalists converted foreign crisis into domestic crisis. Under cover of whipped-up war hysteria, they assailed the patriotism of the Republicans, portraying them as Jacobin disorganizers in the country's bowels whose ultimate treachery only awaited the signal of an invading French army. Although the President refrained from asking for a declaration of war, he inflamed the war spirit. Congress abrogated the French treaties, expanded the army, established the Navy Department, and authorized an undeclared naval war against France. The Republicans fought this policy to no avail. Two years later the Supreme Court, in a prize case, Bas v. Tingey (1800), upheld the power of the government to make war without declaring it.

The war hysteria found domestic expression in the alien and sedition acts. The Republicans attacked the laws restrictive of aliens on grounds of policy and the Alien Act, in particular, for violating the Constitution by authorizing the President summarily to deport aliens deemed dangerous to the nation. The Sedition Act, the Republicans argued, was without congressional authority and directly violated the first amendment. Despite the smokescreen of war, treason, and subversion, Republicans believed that the law aimed at suppressing their presses and crippling their party. Political freedom, as well as freedom of speech and freedom of the press, was at stake. When the federal courts, manned by partisan Federalist judges, cooperated in enforcing the Sedition Act, closing off the judicial channel of redress, Jefferson and Madison turned to two Republican state legislatures to arouse opposition. The virginia and kentucky resolutions interposed the authority of these states to declare the Alien and Sedition Acts unconstitutional and urged other states to join in forcing their repeal. The resolutions were especially significant as landmark statements of the theory of the union as a compact of sovereign states and of the right of a state, whether by interposition or nullification, to judge the constitutionality of acts of Congress. Northern state legislatures, in response, rejected the theory together with the appeal. Although the resolutions contributed to rising popular opposition against the administration, they did not force repeal of the hated laws. Whatever their later significance for the issue of states ' rights and Union—the constitutional issue over which the Civil War would be fought—the resolutions originated in a struggle for political survival and addressed the fundamental issue of freedom and self-government descending from the American Revolution.

The foreign crisis passed in 1800. Adams seized the olive branch extended by France, broke with the Hamiltonian faction in his administration, and dispatched another commission to negotiate peace. The result was the Convention of 1800, which restored normal relations and formally terminated the Franco American alliance of 1778. From the standpoint of the "war system," Adams's decision to make peace drove a sword into the Federalist party. In the ensuing presidential election, Hamilton and his friends conspired to defeat Adams.

The election of 1800 was bitterly contested by two organized political parties. The Republicans achieved unprecedented unity behind their ticket of Jefferson and aaron burr. By party organization and electioneering tactics they turned the election of the President into a test of public opinion. This, of course, made a mockery of the Constitution, under which a body of electors separated from the people was to choose the President and vice-president. Electoral tickets became party tickets, and every presidential elector became an agent of the popular majority that elected him.

Jefferson won a decisive victory over Adams. Although the Federalists swept New England, took two of the small middle states (New Jersey and Delaware), and picked up scattered votes in three others, the Republicans won everything else, south, west, and north. The electoral vote, 73–65, failed to reflect the wide Republican margin at the polls. But the victory was jeopardized by political developments that played havoc with the electoral system. Under the Constitution each elector cast two votes for different candidates; the one with the most votes became President, while the runner-up became vice-president. The rise of political parties made the system an anachronism, for electors chosen on a party ticket would cast both votes for the party candidates, thereby producing a tie between them. So it happened in 1800: Jefferson and Burr received an equal number of electoral votes. The choice was thus thrown into the House of Representatives. There the lame-duck Federalist majority plotted to annul the popular verdict either by creating an interregnum or by dealing Burr into the presidency. Finally, on the thirty-sixth ballot, the stalemate was broken and Jefferson was elected.

The new Republican majority moved rapidly to amend the Constitution to prevent a similar occurrence in the future. The twelfth amendment (1804) provided for separate ballots for President and vice-president. The elaborate machinery devised by the Framers for the election of the President was thus radically revised in response to changing political realities. Not only was this an effective use of the amending process, but it seemed to suggest frequent change by amendment in the future. However, the next amendment of the Constitution came only after the passage of sixty-one years and the convulsions of civil war.

Merrill D. Peterson


Buel, Richard, Jr. 1972 Securing the Revolution: Ideology and American Politics, 1789–1815. Ithaca, N.Y.: Cornell University Press.

Malone, Dumas 1962 Jefferson and the Ordeal of Liberty. Boston: Little, Brown.

Miller, John C. 1960 The Federalist Era: 1789–1801. New York: Harper & Row.

Stourzh, Gerald 1970 Alexander Hamilton and the Idea of Republican Government. Stanford, Calif.: Stanford University Press.

White, Leonard D. 1948 The Federalist: A Study in Administrative History, 1789–1801. New York: Free Press.

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Constitutional History, 1789–1801

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Constitutional History, 1789–1801