by Ray Raphael
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 transaction of business with foreign nations is Executive altogether…. The Senate is not supposed by the Constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place … which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.6
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.7
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:
We conceive the constitutional doctrine to be that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three branches of legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On the precedent now to be set will depend the future construction of our Constitution.8
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.9
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”:
That though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty, and even life itself, are but dreary things. And let us reflect that having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance, as despotic, as wicked, and capable of as bitter and bloody persecutions.
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 th
e 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.10
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.”11
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.”12
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.”13
Except judges who had been appointed for life. These were “irremovable” by direct acts, Jefferson conceded, but that did not prevent him from removing them indirectly. During the eight-month interlude between the inauguration and the first session of the Seventh Congress, Jefferson and the Republicans plotted a multipronged attack on the Federalist-controlled judiciary.
First, Jefferson removed Federalist marshals and court attorneys who had been “packing juries and prosecuting their fellow citizens with bitterness of party hatred.” While he couldn’t touch the judges, he could redirect the “executive” arm of the courts. He could also withhold a handful of commissions to Adams’s “midnight” appointees that had slipped through the cracks and never been delivered, a move that led to the landmark case Marbury v. Madison discussed on this page.14
Next, after Congress reconvened, it would repeal the Judiciary Act recently enacted by lame-duck Federalists. This measure increased the number of district and circuit courts, enabling Adams to grant new judgeships to Federalists, and reduced the number of seats on the Supreme Court from six to five, thereby making it less likely that Jefferson would be able to appoint a justice of his persuasion. Repealing the Judiciary Act was perfectly legal, Republicans argued. If the Constitution allowed Congress to “ordain and establish” new courts, it also permitted Congress to abolish them.
Third, to postpone legal challenges they expected from Federalists, the Republican Congress canceled two sessions of the Supreme Court. By the time the Court met again early in 1803, the Judiciary Act would already have been repealed and the new courts abolished.
Finally, Republicans vowed to impeach Federalist judges. To do this, they would need to show cause, and as the other assaults progressed, they eyed likely targets.
President Jefferson had his hand in all of this. In his first State of the Union address, he called Congress’s attention to “the judiciary system of the United States, and especially that portion of it recently erected.” Nobody could mistake the reference to the Judiciary Act of 1801. Were new courts really needed? He had gathered lists of the courts’ business, which he “now lay before Congress” so members could judge for themselves whether the expansion was necessary. Clearly, he believed it was not, but he let the data speak for itself.15
Meanwhile, he worked with Republicans in both houses of Congress to craft a repeal and strategize for pushing it through. This would be the featured battle in “our winter campaign,” as Jefferson phrased it: “the suppression of useless offices, and lopping off the parasitical plant engrafted at the last session on the judiciary body.” Today, we expect the president to take a leadership role in drafting legislation, but this was not what the framers had envisioned, and it was what Anti-Federalists had feared. Indeed, Hamilton’s participation in the legislative process had been one of the triggers to the formation of an opposition party, and a cornerstone of the Republican platform was to limit executive interference with the people’s direct representatives. Consequently, Jefferson had vowed not to interfere with Congress, and openly he did not, but starting with the campaign to repeal the Federalists’ Judiciary Act, and continuing through his two terms in office, he bonded closely with congressional party leaders to enact his agenda. Federalists noted this with disdain. “The Executive as completely rules both Houses of Congress as Bonaparte rules the people of France,” complained the Massachusetts congressman Manasseh Cutler as debate on the repeal neared conclusion.16
Repeal of the Judiciary Act passed the Republican-dominated House handily, but in the Senate the razor-thin Republican majority temporarily disappeared when two senators reported absent due to illness. The task of introducing and managing the bill fell to John Breckinridge, who had ushered Jefferson’s resolutions opposing the Alien and Sedition Acts through the Kentucky legislature three years earlier. Opposition to repe
al was led in part by one of the Senate’s most recent members, Gouverneur Morris.
Morris was staging a comeback of sorts after a twelve-year absence from domestic politics. He had sat out the ratification debates, calling them only half-jokingly a “dull subject.” In 1789, to further the business interests of Robert Morris and himself, he traveled to France, just in time to take in the first phase of that nation’s Revolution. Washington then asked him to perform a diplomatic task in Britain, which he did, and after returning to France, on the morning of December 6, 1791, Gouverneur Morris brashly completed his trilogy of constitutions—the first one for New York, the next for the United States, and this one for a Continental European giant clearly in need of some guidance. Adjusting for the change in venue, Morris’s French constitution, unlike those he helped author in America, featured a hereditary monarch; “the proper form of government” for any state, he wrote, depended on “the habits and manners of its citizens.” Morris’s weak attempt to salvage the French monarchy got nowhere, but he soon learned that President Washington had appointed him to serve as minister to France. Over and above the objections of French sympathizers such as Jefferson and Monroe, the Senate approved the appointment. As minister, Morris did not shy from dealing with the new revolutionary government, but simultaneously he sheltered refugee aristocrats and tried to help the royal family escape. In 1794, French revolutionary officials demanded his recall, and he spent the next four years touring Europe. After that he returned to his original home at Morrisania, delivered New York’s official eulogy to President Washington, and early in 1800 was appointed by the state legislature to fill the remaining term of the U.S. senator James Watson, who resigned to accept one of John Adams’s lame-duck appointments.17
