CHAPTER FIVE

ESTABLISHING GOVERNMENT UNDER THE CONSTITUTION, 1789-1801

JAMES MADISON ONCE REMARKED THAT it was the thirteen state ratifying conventions that breathed “life and validity” into the Constitution; with the assent of those ratifying conventions, the constitutional history of America as a nation was about to begin. As historian Bernard Bailyn has written, the Constitution amounted to no more than “words on paper” until President George Washington and the First Federal Congress began to implement the theoretical principles enunciated in that document. From that time forward, America’s constitutional history would be shaped by political leaders and ordinary citizens alike, as they sought to implement the new nation’s experiment in union.

It is no accident that George Washington has gone down in history as “the Father of His Country.” It is not merely that he had been commander in chief during the colonies’ most perilous hour, in the American War for Independence, or that he reluctantly came out of retirement to serve as president of the Convention that brought the Constitution into being. His active presence may have been indispensable on each of those occasions, but his role as America’s first president was of even greater importance. He knew that in spite of the words written on the parchment pages of the Constitution, the new federal government and the union it was intended to achieve were held together by tenuous threads. He knew that every action he took as the nation’s first chief executive would be critically important in adding substance to the bare superstructure created by the Constitution, and that those actions would serve as precedent for subsequent generations.

President Washington took his oath of office in the Senate Chamber of Federal Hall in New York on April 30, 1789. The Constitution prescribes the precise words of the presidential oath: “I do solemnly swear (or affirm) that I will . . . to the best of my Ability, preserve, protect and defend the Constitution of the United States.” As he took that first oath of office, Washington set a precedent that, down to the present day, most presidents would follow: he added to the end of the oath the phrase “so help me God,” thereby injecting the deity into a government that was, by the terms of the Constitution itself, entirely separate from matters of religion or the church. His inaugural address—itself a precedent-setting event—was quintessential Washington: it combined an outward humility about his abilities to carry out the enormous responsibilities of the office with a dignified and self-confident manner that left no one in the audience with any doubt about his ability to shoulder those responsibilities.

As Washington was assuming the responsibilities of the presidency, the First Federal Congress, which had been in session since early March, was already hard at work fulfilling the most important promise made by the Federalists during the ratification debates: the promise that a bill of rights would be added to the Constitution. James Madison took the lead in steering a draft of a bill of rights through the Congress. On May 4, 1789, he announced his intention of introducing into the House of Representatives a set of amendments designed to “make the Constitution better in the opinion of those who are opposed to it.” The content of what came to be known as the Bill of Rights was strongly influenced by similar bills of rights incorporated into the revolutionary state constitutions and, in particular, by the Virginia Declaration of Rights drafted by George Mason and adopted in June 1776. Congress approved a revised set of twelve amendments on September 25, and sent them to the states for ratification. Two of the amendments—one dealing with the apportionment of representation in the House of Representatives and the other prohibiting Congress from granting pay raises to its members before another election had been held—were not ratified by the states, but by December 15, 1791, the necessary number of states had ratified the other ten, and the Bill of Rights became a part of the United States Constitution.

The president’s cabinet, consisting of the most senior officers of the executive branch below the president himself, is only hinted at in the Constitution. Article II, Section 2, gives the president the power to appoint, with the consent of a majority of the members of the Senate, “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” But the Constitution is silent on how the “other Officers” of the executive branch are to be appointed. In the absence of specific wording on the subject, the First Congress took the lead in creating a system of administrative departments that would work with the president in carrying out the duties of the executive branch. The Congress began steps to create three departments during its first months of operation: the Department of Foreign Affairs (which in revised form became the Department of State), whose first secretary would be Thomas Jefferson; the Department of the Treasury, headed up by Washington’s brilliant and loyal Revolutionary War aide-de-camp, Alexander Hamilton; and the Department of War, whose first secretary was another military compatriot of Washington’s, General Henry Knox.

The debate over the creation of the Department of Foreign Affairs led to some disagreement over whether Congress or the president had the power to remove a cabinet officer; the decision arrived at on that occasion was that the power belonged to the president. In fact, the matter remained a subject of contention between Congress and the president for more than a century, although the sole authority of the president to remove cabinet officials seems now very well established.

Congress was even more aggressive about asserting a role that was equal to that of the executive branch with respect to the Department of the Treasury. Since the power over the purse was considered to be the most important that Congress possessed, the members of the First Congress, in creating the office of secretary of the treasury, required that the secretary “give information to either branch of the legislature, in person or in writing . . . respecting all matters referred to him.” Although the secretary of the treasury has proven to be primarily an agent of executive power, Congress has always wished to keep close watch over the Treasury Department’s activities.

Congress’s other significant action during its first session was to fill in some of the Constitution’s missing pieces with respect to the federal judiciary. The sections in the Constitution on the structure and powers of the judiciary are exceptionally vague. Article III states simply that “the judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The courts’ powers were similarly vague: they would have authority in “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made,” but where that authority began and ended was anyone’s guess. Almost immediately after the First Congress convened, a special judiciary committee, chaired by Connecticut’s Oliver Ellsworth, a member of the Constitutional Convention in 1787 and a future chief justice of the Supreme Court, began meeting. In September 1789, Congress passed the Judiciary Act of 1789. It created a federal court structure that has remained largely unchanged up to the present day, with three levels of federal courts: in the bottom tier, a set of district trial courts that empanel juries and hear cases; circuit courts that hear serious crimes involving sums of money over five hundred dollars, as well as hearing appeals from the district courts; and finally, the Supreme Court, which stands at the top of the hierarchy and in certain instances hears cases brought to it from the circuit courts of appeals.

The Judiciary Act of 1789 stipulated that the Supreme Court would consist of six justices, a number expanded by Congress to seven in 1807, then to nine in 1837 (Congress expanded the number to ten in 1863, but in 1869 it was reduced once again to nine, where it has remained up to the present day). The act defined the authority of the court narrowly, although it did grant the Supreme Court jurisdiction over appeals from state courts on matters touching on federal law. Over time the Supreme Court has asserted its power to hear appeals from state courts more aggressively, but in 1789 the precise jurisdiction of the Supreme Court with respect to state court cases was anything but clear. Initially, judges of the circuit courts were drawn from both the district courts and the Supreme Court, with the result being that Supreme Court justices had the arduous duty not only of doing their designated jobs but also of riding circuit in various regions of the country hearing cases on appeal from the district courts. Although the Judiciary Act of 1789 went part of the way toward putting flesh on the bare-bones structure of the federal judiciary as defined in the Constitution, the development of the judicial branch as a powerful component of the triad of executive, legislative, and judicial power remained unrealized in 1789.

Finally, the Judiciary Act of 1789 took one other important step in helping to shape the president’s cabinet by creating the office of attorney general, a position that President Washington immediately filled with the appointment of his friend and former Virginia governor Edmund Randolph.

The question of whether and under what circumstances the president should exercise a veto over congressional legislation was a subject of considerable disagreement in the Constitutional Convention. The final language of Article I, Section 7, stipulates that the president can veto a law passed by Congress, but Congress retains the right to override the veto if two-thirds of the members of both houses choose to do so. In 1792 Washington received a bill from Congress that would have given some districts more than the one member of the House of Representatives for every thirty thousand inhabitants spelled out in the Constitution. Accordingly, Washington vetoed the bill on the grounds that it was in violation of the language of the Constitution. His veto did not provoke significant opposition in the Congress, but it would be his only veto of a congressional bill. Indeed, neither of his immediate successors, John Adams and Thomas Jefferson, would make use of the veto power, and it would not be until the presidency of Andrew Jackson that a chief executive would veto a bill, not on constitutional grounds, but rather because he disagreed with the policies proposed by the bill.

President Washington was the most influential in setting constitutional precedents that would determine the way the government would operate in subsequent generations, but the policies proposed by his secretary of the treasury, Alexander Hamilton, would play a hugely important role in enhancing the powers of the new federal government and, in the process, precipitate the first important constitutional debate in the young nation’s history.

During the years 1790-91, Hamilton put forward ambitious proposals to put the young nation’s finances and economy on a stronger footing. Hamilton proposed not only to pay off the debts incurred by the Continental government during the Revolutionary War but also to assume responsibility for the debts of the individual state governments. He hoped to establish the precedent that the federal government, and not the state governments, was the entity responsible for overseeing the financial well-being of the nation’s economy. There was heated opposition to Hamilton’s plan from those who feared that his proposal to pay off the state debts amounted to usurpation of state power, but Hamilton’s proposals passed Congress and were signed into law by President Washington. Next, Hamilton proposed the creation of a national bank: the Bank of the United States. In one sense Hamilton’s proposed bank was to operate like a private corporation, with a board of directors composed largely of private citizens and with a responsibility to return a profit to its shareholders. But it was also intended to function as a public entity, with the authority to handle many of the government’s financial policies and transactions.

Congress passed the bank bill in February 1791 and transmitted it to President Washington for his approval. Mindful that many in Congress had strong objections to yet another Hamiltonian attempt to centralize power in the hands of the federal government, Washington sought opinions on the bill’s constitutionality from both Hamilton and the secretary of state, Thomas Jefferson. Jefferson objected to the bill on two grounds. First, he argued that nowhere in the Constitution was the Congress empowered to charter a bank and that the Tenth Amendment, which reserves all powers not specifically enumerated in the Constitution to the states, rendered the bank bill unconstitutional. Jefferson then laid down the doctrine of what would come to be called “strict construction,” arguing that the final paragraph of Article I, Section 8, of the Constitution, giving Congress the power to pass laws “necessary and proper” for carrying into effect the enumerated powers, needed to be interpreted narrowly. In Jefferson’s reading of that clause, the so-called unenumerated powers of Congress needed to be “indispensable” or of an “invincible necessity.” He could see no such necessity in Hamilton’s bank bill. Hamilton, arguing for a broad construction of the “necessary and proper” clause, defined the clause as sanctioning actions by Congress that would be “useful,” “needful,” or “conducive” and defended his bill. President Washington, after considering the two arguments, sided with Hamilton and signed the bill into law, but the constitutional line of division between “strict constructionists” and “broad constructionists” would remain an important part of the debate on how to interpret the Constitution from that time right up to the present day.

The constitutional division articulated during the debate over the Bank of the United States, along with important differences of opinion over the proper conduct of American foreign policy, led to an entirely unexpected development in American life: the development of organized political parties. These divisions were initially only loosely formed coalitions in the United States Congress, but they were gradually transformed into self-conscious entities founded on a large popular base throughout the country as a whole. These nascent political parties began to appear during the second term of President Washington’s administration, and then increased in importance and intensity during the administration of Washington’s successor, John Adams. Those favoring a strict construction of the Constitution also tended to be wary of the Washington and Adams administrations’ foreign policies. They believed those policies to be overly friendly to the monarchical government of Great Britain and insufficiently supportive of America’s revolutionary ally France, which in 1789 had undergone its own revolution inspired in part by the principles of the American Revolution. James Madison, one of the architects of the Constitution and one of the leading Federalists supporting it during the ratification debates, joined with Thomas Jefferson as a leader of what would come to be called the Jeffersonian Republican Party. Although Alexander Hamilton was responsible for many of the policies that would define the agenda of what came to be known as the Federalist Party, President Washington and President Adams were chiefly responsible for implementing those policies.

As candidates for public office at all levels found it necessary to take positions on the issues that divided Federalists and Republicans, popular awareness of national political issues increased. More and more frequently, the outcome of elections, particularly to Congress, turned not on traditional notions of who might be the wisest or most virtuous candidate but, rather, on the party identification of the candidates. With the retirement of President Washington in 1796 (his decision not to seek a third term would constitute yet another unofficial constitutional precedent, one that held sway until 1940, when President Franklin D. Roosevelt successfully sought a third term), partisan attention began to focus on the election of the president.

Beginning in 1796, but reaching a higher level of sophistication in 1800, leaders of the two parties aggressively recruited voters to cast their ballots for presidential electors pledged in advance to the respective standard-bearers of the two parties. This would have a profound effect on the way in which one provision of Article II, Section 1, pertaining to the way the electoral college was to select a president, worked. The Constitution stipulates that the individual states will determine the manner in which electors are selected. In the beginning, some were elected from individual electoral districts, some were selected by a statewide ballot, and still others were selected by the state legislatures. But whatever the mode of selection, the framers of the Constitution assumed that those voting for the presidential and vice-presidential electors would do so on the basis of the prospective elector’s standing in his state or local community, and that those elected to the position would then use their own independent judgment in casting their ballots in the electoral college. With the advent of political parties, candidates for elector now ran on the basis of their support for the presidential and vice-presidential nominees of the respective parties. In that fashion, the selection of the president and vice president, initially conceived as a process in which the people would be only indirectly involved, began to operate in a far more democratic fashion, with the two parties actively recruiting the voters to support their slates of electors.

In 1798, as the contest between the Republican and Federalist parties for control of the new government intensified during the administration of John Adams, the Federalist majority in Congress passed—and President Adams signed into law—the Alien and Sedition Acts, a set of acts aimed not only at seeking out and deporting dangerous aliens (who in the eyes of the Federalists were usually French), but also at punishing with fines and even imprisonment anyone who published or printed “false, scandalous, and malicious writing” against the government of the United States. In passing the law, the Federalists were defining their Republican opponents not as a “loyal opposition” but, rather, as enemies to the government. In an age where changes in government had traditionally come about only through illegal coups d’état or, as in the American case, by revolution, the Federalists, as the party in power, were simply not able to distinguish between honest differences of opinion over policy and treasonous behavior. Accordingly, they used the Alien and Sedition Acts to initiate criminal prosecutions against their political rivals.

The Alien and Sedition Acts, far from silencing the Republican opposition, only served to inflame it, with Republican pamphleteers and newspaper contributors becoming ever more vitriolic in their attacks on the Federalists, and the Federalists, in turn, becoming even more determined in their prosecution of their political opponents. This partisan warfare triggered the first constitutional crisis in the nation’s young history. The Virginia legislature, acting under the leadership of James Madison, and the Kentucky legislature, spurred on by Thomas Jefferson, passed sets of resolutions declaring the Alien and Sedition Acts unconstitutional, as violations not only of the First Amendment guarantees of free speech and freedom of the press but also of the guarantees of the Tenth Amendment, which, Jefferson argued in his draft of the Kentucky Resolutions, reserved to the states power “over the freedom of religion, freedom of speech, [and] freedom of the press.” What was truly novel about the Virginia and Kentucky Resolutions was their proposed remedy for this clash of constitutional interpretation between the states of Kentucky and Virginia, on the one hand, and the federal Congress on the other. The Virginia and Kentucky Resolutions asserted that since the federal Constitution was a compact among the individual states, it was the states themselves that had ultimate authority to determine the constitutionality of a federal law and, in the case of a federal law that threatened to interfere with the liberties of the people of the states, to “interpose” themselves as a means of “arresting the progress of evil.” Jefferson’s Kentucky Resolutions went even further, stating that since that state had found the Alien and Sedition Acts to be in violation of the U.S. Constitution, it had the right to declare the laws “altogether void and of no force.” In a final, provocative statement, the Kentucky Resolutions averred that if the federal government continued to exercise its power oppressively, those actions might “drive these States into revolution and blood.”

The Virginia and Kentucky Resolutions had ominous implications for the new union. By the reasoning of the resolutions, the individual states, not the Supreme Court of the United States, were the ultimate arbiters of the constitutionality of a federal law. Some thirty years later, John C. Calhoun of South Carolina would follow the logic of the Kentucky Resolutions in enunciating the doctrine of “nullification,” the right of a state to render “null and void” any statute that was in that state’s judgment unconstitutional. And by Calhoun’s logic—and later that of Confederate president Jefferson Davis—the ultimate recourse of the states, as original parties to the federal compact, was that of secession from the union itself. At the time that Jefferson and Madison wrote the Virginia and Kentucky Resolutions, the concept of “judicial review,” giving to the Supreme Court ultimate authority on issues relating to the interpretation of the Constitution, had not been fully established or accepted, although certainly many of the framers of the Constitution assumed that the Supreme Court might exercise such a function. That constitutional development lay in the future and would occur only after the constitutional crisis over the Alien and Sedition Acts was settled, not by courts or by force of arms but, rather, at the ballot box.

By the time of the presidential election of 1800, the Federalist and Republican parties had put into place more fully developed structures by which to recruit voters to their respective sides, and those advances in party organization, together with the overheated, partisan atmosphere created by disagreements over foreign policy and the Alien and Sedition Acts, made it one of the most vituperative and bitterly contested presidential elections in American history. The Federalists selected a slate consisting of the sitting president, John Adams, as their presidential candidate and Charles Cotesworth Pinckney of South Carolina as the vice-presidential candidate. The Republican ticket featured Thomas Jefferson as the presidential candidate and Aaron Burr of New York as the vice-presidential candidate. When the presidential electors had cast their ballots, the Republican slate received a majority of electoral votes, but party discipline among the Republican electors was so great that each of the electors cast each of their two ballots for Jefferson and Burr. Article II, Section 1, of the Constitution stipulates that each elector casts two ballots, and that the individual receiving the largest number of votes will be president and the individual receiving the second-highest number of votes will be vice president, but it does not differentiate between a presidential vote and a vice-presidential vote. Since Jefferson and Burr had received an equal number of electoral votes, there was no constitutional means by which to determine who was meant to be president and who vice president. So, again by the terms of Article II, Section 1, the election was thrown into the House of Representatives, where the state delegations in the House, with each state being given equal weight in the voting, would decide the outcome of the election. After a good deal of tumult and intrigue, in which the Federalists in the House seemed to be maneuvering to elect Burr rather than Jefferson (a scheme to which Burr did not seem to object!), the House, on the thirty-sixth ballot, finally elected Thomas Jefferson as the third president of the United States. But the whole affair demonstrated that the electoral college provision of the Constitution, as it was then constructed, was not well suited to an election process in which political parties were working diligently to organize the electorate behind both their presidential and vice-presidential candidates. The passage of the Twelfth Amendment in 1804, which stipulates that presidential and vice-presidential electoral ballots be separate and distinct, signaled a recognition of how the advent of political parties had changed the way the electoral college functioned, transforming it from an elitist institution into a democratic one. Of all of the events of the first twelve years of the new government’s operation, the emergence of political parties—a development unanticipated and unwanted by the Founding Fathers and operating wholly outside the formal political and constitutional structures of the new federal union—would be paramount in transforming the American republic into a democratic republic.

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