by Ray Raphael
The first clause of Article I, Section 8 empowered Congress to lay taxes and pay debts, while the second clause permitted it to borrow money; together, these covered all aspects of the initial phase of Hamilton’s plan. Even so, there was no mention in the Constitution of chartering banks, which had been a province of the states, and certainly no word of granting one group of private investors special standing in federal law. Troubled, Washington asked Attorney General Edmund Randolph for a legal opinion. As the House was debating the bill, Randolph and Washington discussed the matter twice, and the president asked for a considered, written opinion by the government’s official legal expert. Randolph came back with a decisive answer: Congress did not possess a constitutional authority to incorporate the Bank of the United States. There was no specific clause empowering it to do so, and the final clause of Article I, Section 8, which allowed it to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” was subject to dangerous abuse. Randolph closed his response with a rhetorical question: “Let it be propounded as an eternal question to those, who build new powers on this clause, whether the latitude of construction which they arrogate, will not terminate in an unlimited power in Congress?”7
The bill to incorporate the bank passed the House on February 14 by a thirty-nine-to-twenty vote, just shy of the two-thirds supermajority that body would need to override a presidential veto, should Washington decide to oppose it. Having held office for almost two years, Washington had not vetoed any bills, and to do so would certainly ignite a political storm, but with his attorney general firmly opposed to the bank on legal grounds, the president certainly had to consider issuing the nation’s first “negative,” as they said at the time. According to the Constitution, he had exactly ten days to make up his mind.
After receiving Randolph’s opinion, Washington asked Secretary of State Jefferson to weigh in, and on February 15 Jefferson, like Randolph, issued a strong statement opposing any act of incorporation. He understood the practical reasons for preferring banknotes to paper money, but that did not justify bypassing the Constitution. “Perhaps indeed bank bills may be a more convenient vehicle than treasury orders, but a little difference in the degree of convenience, cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.”8
The following day, just over a week before his decision-making deadline, Washington forwarded Randolph’s and Jefferson’s arguments to Hamilton and asked for a response “so that I may be fully possessed of the argument for and against the measure before I express any opinion of my own.” The president was acting exactly as the framers intended. He had stayed out of congressional deliberations, but now that the matter was placed before him for his signature, he maturely considered whether it was in accordance with the Constitution. Even George Mason, who had regretted the absence of an executive council, could have taken heart by Washington’s use of his closest advisers, had he been privy to the inner workings of the administration.9
Hamilton did not respond immediately, and in the meantime Washington asked Madison, who had led the opposition in Congress, to draft a veto message “to be ready in case his judgment should finally decide agst the Bill for incorporating a National Bank, the Bill being there before him.” If Washington had made such a determination, and if he had followed Madison’s draft, here is how he would have explained his decision: “I object to the Bill because it is an essential principle of the Government that powers not delegated by the Constitution cannot be rightfully exercised; because the power proposed by the bill to be received is not expressly delegated; and because I cannot satisfy myself that it results from any express power by fair and safe rules of implication.”10
Washington never did deliver that message. Two days before the deadline, Hamilton gave the president a sweeping rebuttal to the opponents’ arguments. “Every power vested in a government,” he proclaimed, “includes … a right to employ all the 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, or not immoral, or not contrary to the ends of political society.” This was exactly the all-encompassing interpretation Randolph warned against, but Hamilton argued that Randolph, Jefferson, and Madison, in their narrow interpretation of “necessary and proper,” would “beget endless uncertainty and embarrassment” and cripple the legitimate functioning of government. Were “light houses, beacons, buoys & public piers” absolutely necessary to governmental operations? No, a country could exist without them—and it would have to if his opponents had their way, because the construction of these public works was not included in the eighteen powers relegated to Congress. Yet wouldn’t it be foolhardy to deem a government-supported lighthouse unconstitutional?11
After delivering his hard-hitting reply, Hamilton hammered home his points in person, all morning and until two in the afternoon the day before the president needed to make his final decision. Not surprisingly, when that decision came, it was in Hamilton’s favor. Washington was a true believer in a strong central government. He had advocated it for years, and he had come out of retirement to facilitate it. To veto the bank would have undercut his work on several counts. Politically, it would have alienated his Federalist allies. Since this would be his first veto, and since both houses of Congress had passed the measure by wide majorities, Washington’s “negative” would be presented as a usurpation of his powers, even though it was safely within his constitutional prerogatives. More important, to base his veto on a limited interpretation of the “necessary and proper” powers of Congress would have hampered government precisely at a time when it needed to be strengthened. A practical man, a military man, Washington was not prepared to retreat this far. The government must move forward.12
Moving forward with Hamilton’s bank, though, did have its costs. As with the earlier aspects of the Treasury secretary’s plan, opposition out of doors was stronger than opposition within Congress. The national bank was widely regarded as a federal encroachment on state authority and a power grab by moneyed interests. Farmers who objected to paying taxes for the aggrandizement of speculators doubled their opposition to the federal government, allegedly now in the hands of bankers. Main Street’s demonization of Wall Street had its roots in the tussles over Alexander Hamilton’s financial plan, measures that President Washington did not initiate but did eventually approve.
By 1794, local defiance of the federal government’s economic policies had developed in Kentucky, Maryland, Virginia, the Carolinas, and Georgia, while resistance in Pennsylvania was turning into a full-scale rebellion. Angry farmers closed roads to impede the travel of tax men, threatened collectors with humiliation and bodily harm, organized committees of correspondence, and erected liberty poles, all reminiscent of Revolutionary days. As opposition mounted and spread, some dissidents even threatened secession. Hamilton called the protests the Whiskey Rebellion, a name that has stuck to this day, and he tried to convince Washington to crush it with military force, regardless of the outrage such an action might engender. “I have long since learned to hold popular opinion of no value,” Hamilton freely admitted. At first Washington resisted Hamilton’s counsel. “To array citizen against citizen,” he wrote, was a step “too delicate, too closely interwoven with many affecting circumstances, to be lightly adopted.” In the end, though, Washington acquiesced and called out troops. Riding at the head of 12,950 militiamen called up from four states, the president of the United States, as authorized by the Constitution, headed west across Pennsylvania to “suppress” an “insurrection.”13
This was not how Washington had imagined his role. He had wanted to avoid discord and had done his best to do so. He had favored a Bill of Rights solely to satisfy opponents of the Constitution. He had treated opposition leaders respectfully, even inviting the irascible William Maclay to dinner. The very day Hamilton completed his first financial report, Washington
had boasted to Catharine Macaulay Graham, the highly touted British historian, that the American government was “the last great experiment, for promoting human happiness, by reasonable compact, in civil society.” It was to be “a government of accommodation as well as a government of laws,” guided not only by “firmness” but also by “prudence” and “conciliation.”14
The implementation of Hamilton’s financial plan, though, polarized Americans to such an extent that Washington opted for firmness over accommodation or conciliation. Despite his vow to remain above partisan politics, he could no longer appreciate the plausible viewpoints of his opposition, as a truly disinterested leader must do. According to Washington, western protesters were stirred to act not by their own reasonable grievances but by the “Democratic Societies” of his political adversaries, “the same set of men endeavoring to destroy all confidence in the Administration.” These people hoped “to disquiet the public mind” and “draw a line between the people and the government,” and that’s why they convinced gullible farmers “that their liberties were assailed.” When explaining his repression of the insurgency to Congress, the president closed by “imploring the Supreme Ruler of nations” to counter “the machinations of the wicked” and bring them to their senses. By appealing to God to change the minds of political foes, Washington unwittingly demonstrated that his attempt to transcend partisanship was coming up short.15
Citizens of the early Republic divided over foreign policy issues as well as domestic matters, and these divisions raised questions about the nature and limits of executive authority. Who had the power to shape foreign policy—Congress, the president, or some combination? Since the Constitution had not addressed this question directly, political actors during the turbulent 1790s tried to fashion answers that suited their ideological slants and/or their immediate political ends.
The background: Britain was at war once again with France, hardly an unusual occurrence for the eighteenth century, but this time there were extenuating circumstances that affected the allegiance of many Americans. One-third of a century earlier, when Anglo-Americans drove France from North America, allegiances were never in question, but this time, while some continued to favor Britain, the former mother country with whom Americans still shared a language, a culture, and close commercial ties, others favored France, which had come to the aid of the newly independent nation during the Revolutionary War and which was in the midst of its own revolutionary fight for liberty. Anglophiles refused to repudiate the British tradition they had inherited, while Francophiles refused to repudiate the 1778 treaty alliance with France, signed at the darkest hour and still legally binding. Francophiles accused their opponents of being monarchists who still honored the British king; Anglophiles treated their opponents as dangerous Jacobins, bent on destroying the fabric of civil society.
Fault lines overlapped the schisms that had developed over domestic policy. The mercantile class tended to favor Britain, America’s most frequent trading partner, while those favoring France, noting that pro-British merchants were the very same men who were getting rich from Hamilton’s financial program, called them “mushrooms of the funding systems.” Those favoring Britain, including Hamilton himself, claimed the opposition was composed of warmed-over Anti-Federalists “busy in undermining the Constitution and government of the U. States … by striving to destroy the confidence of the people in its administration.” According to Hamilton, the same “secret clubs” that opposed his funding plan were “dispatched to distant parts of the United States” to stir up “partisans of the disorganizing corps” and mobilize sympathy for France.16
Characteristically, Washington tried to steer a middle course, but once again he found the middle road could readily vanish. On April 22, 1793, he issued an executive proclamation pledging the United States to “pursue a conduct friendly and impartial toward the belligerent powers.” To this end he wrote, “I … exhort and warn the citizens of the United States carefully to avoid all acts and proceedings whatsoever, which may in any manner tend to contravene such disposition.” Further, he promised to prosecute anyone who aided or abetted the hostile actions of either power or who in any way “violate[d] the law of nations with respect to the powers of war.”17
Where in the Constitution did the president acquire the power to issue such a proclamation?
Nowhere, said James Madison. Pointing to powers granted to Congress under Article I, Section 8, he observed, “The right to decide the question whether the duty and interest of the U.S. require war or peace … seem to be … vested in the Legislature.” Congress alone had the power to “declare war” and “define and punish … offenses against the law of nations.”18
Not so, said Alexander Hamilton, always a firm advocate of executive authority, who used the proclamation as an occasion for putting forth his own interpretation of the Constitution. Although the proclamation had nothing to do with the duties of the secretary of the Treasury, he wrote a series of letters to the pro-administration Gazette of the United States, using the pen name Pacificus to suggest the president’s proclamation would keep the nation from war. “The Legislative Department is not the organ of intercourse between the U. States and foreign nations,” he declared. “It is charged neither with making nor interpreting treaties.” The judiciary litigated “specific cases,” but it played no role in setting policy. That left the executive as the sole “organ of intercourse between the nation and foreign nations.” Britain, France, Spain, and the rest each had a head of state, after all. The United States needed one man to stand up to these foreign monarchs and represent American interests to the world.
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:
You will see in these Colo. H’s 2d. & 3d. Pacificus. Nobody answers him, & his doctrine will therefore be taken for confessed. For god’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to peices in the face of the public. There is nobody else who can & will enter the lists with him. Never in my opinion, was so calamitous an appointment made, as that of the present minister of F. here. Hotheaded, all imagination, no judgment, passionate, disrespectful & even indecent towards the P. in his written as well as verbal communications, … urging the most unreasonable & groundless propositions, & in the most dictatorial style &c. &c. &c.20
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:
