Cato V, Part XXIII: The Same Causes, contd.

            George Washington was no Julius Caesar; on this subject there would seem to be little cause for debate. Popular though he was, connected to the military though he was, and decisive though he was, Washington never showed the slightest intention to use the legal and practical powers at his disposal as President to transform the American republic into a functional autocracy. He served two terms as in office – the second, it bears noting, under some degree of protest – weathered the crises that came his way as best as he was able, and then retired to a life of peace and quietude on his Virginia plantation. Less than three years later he was dead, having taken ill rather suddenly at the age of sixty-seven, and any lingering threat which he may have posed to the stability of the American system of government was effectively laid to rest with him. But while Washington’s style of leadership may have diverged from that of Caesar in the way that they respectively conceived of their personal relationship to the state – Washington seeking to avoid being thought of as indispensable, Caesar seeking almost exactly the opposite – both men undeniably changed the way that their respective cultures understood political authority and executive power in ways that continued to reverberate for centuries after each man had perished. Caesar, by forcing the disparate legal and cultural institutions of the Roman Republic to submit to his authority, showed the Roman people that it was possible for a single person to rule them without immediately resorting to cruelty and dissipation. It was an impactful lesson, paving the way as it did for an entire lineage of emperors claiming the mantle that Caesar had wrought, and one which the Roman people seemed to learn fairly quickly. Not all of Caesar’s successors were possessed of his competence, charisma, or cunning, of course – indeed, most of them emphatically were not. But all of them, to a man, benefited from the political precedents he had set and the stamp he had left on Roman law and culture.

            Washington, though generally a far less self-interested figure than Caesar, nonetheless bequeathed a similar legacy to the American people as Caesar had to his fellow Romans. Few Presidents were ever going to be as popular, to be sure, or as widely mythologized in the centuries following their death. Washington, in that sense, was more or less untouchable. But what subsequent officeholders could do to at least approach the summit of the man’s soaring reputation was to make use of executive authority in the way that he had shown them. This wasn’t just a matter of reinforcing the precedents that Washington had set, of course. Not every President would have cause to negotiate treaties or call out the state militias, and seeking out such opportunities would assuredly have been tantamount to courting disaster. Rather, it was a matter of style, confidence. Washington’s approach to the presidency – influenced, in no small part, by the advice and encouragement of Federalist partisans like Alexander Hamilton – was to consistently adopt the position that if the executive branch appeared to possess authority in a given area of policy or law then that power was more or less absolute. This was the attitude of the Washington Administration during the Whiskey Rebellion (1794) when it federalized the state militias in response to a purported insurrection in Western Pennsylvania. It was also the tack that Washington adopted when the House of Representatives threatened to withhold the funding necessary to enforce the terms of the Jay Treaty (1795). In both cases, when confronted with a set of circumstances in which it was not entirely clear whether the chief executive, the national legislature, or the states were possessed of superior authority, the first President of the United States acted in such a way as to make it clear to all and sundry that his position – being the sole representative of the American people as a whole – almost always entitled him to the stronger claim to action.

                   

            Not all of Washington’s fellow Americans agreed with how this claimed preeminence was deployed, of course, with the Democratic-Republicans in particular arguing that the national executive was never intended to be the dominant branch of the government described in the text of the Constitution. Nonetheless, it is remarkable just how many of Washington’s successors – regardless of the principles they claimed to possess – seemed unable to stop themselves from following in his footsteps upon being elected to the office of which he was the inaugural holder. Consider, by way of example, the presidency of Thomas Jefferson, founder and ideological wellspring of the aforementioned Democratic-Republicans. After serving as Secretary of State in Washington’s first cabinet between 1790 and 1793, Jefferson spent the latter half of the decade railing against what he and his supporters perceived to be the latent monarchism of Alexander Hamilton and his fellow Federalists while steadily building a socio-political movement of his own. The resulting Democratic-Republican faction combined a number of philosophical streams that had risen and fallen over the preceding decade – the Anti-Federalism of the Ratification Debate, the anti-tax protests of 1792-94, and the pro-French, anti-Jay Treaty agitation of 1795 – into a proto-party organization and an ideology whose principle tenets were pro-state and anti-centralization, pro-French and anti-British, and pro-trade and anti-protectionism. As Jefferson and his ally and confidant James Madison described it, the Washington Administration had transformed the United States into a guarantor of loans rather than a guarantor of freedom; an instrument of speculation where wealthy Americans and wealthy foreigners could enrich themselves yet further at the behest of the farmers, artisans, and laborers who actually tilled the soil and toiled in workshops. What the American people needed to do, they went on to explain, to reclaim the promise embodied in the late Revolution was reject the elitism of the Federalists, their promise of profits, security, and order, and embrace the Democratic-Republican platform of individual rights, states rights, and an exceedingly limited central government.

            Amazingly enough, Jefferson continued to work towards the eventual triumph of Democratic-Republicanism even after his election as Vice-President under the Federalist John Adams in 1796. Indeed, it was in 1798, while serving as Adams’ successor-in-waiting, that he drafted the infamous Kentucky Resolutions in response to the passage of the aforementioned Alien and Sedition Acts, perhaps the first coherent articulation in the history of the United States of the concept that a state could unilaterally ignore or “nullify” a federal law which its government found to be unconstitutional. In spite of the limited success enjoyed by Jefferson and his supporters in the meantime, however – not only had the Federalists won the Presidential Election of 1796, but they maintained control of both houses of Congress following elections in 1797 and 1799 – the organizational prowess of certain of Jefferson’s allies and the mounting unpopularity of the Adams Administration would soon enough bear fruit. The Election of 1800 was not the unadulterated triumph that the Democratic-Republican faithful had doubtless long envisioned – with a split vote between Jefferson and nominal ally Aaron Burr (1756-1836) requiring a tumultuous contingent election in the lame-duck House of Representatives – but the final result was an inarguable rejection of the Federalist program. Not only were Jefferson and Burr elected as President and Vice-President, respectively, but the Democratic-Republicans gained control of the House and the Senate, resulting in the first total transfer of power from one party to another in the history of the United States government since the adoption of the Constitution one decade prior. Now free to transform his principles into policy – save, perhaps, for the potential intervention of the Federalist-dominated courts – Jefferson swiftly set about dismantling the coercive, activist state which had long accused the Federalists of constructing. The “Empire of Liberty” which he had long envisioned was well and finally at hand.

            As ever seems to be the case, however, Jefferson evidently failed to consider that he and his supporters might conceivably develop a very different attitude towards the authority against which they had railed for so long once that authority was placed in their hands. Executive power naturally looked very threatening when deployed to accomplish things with which the Democratic-Republicans disagreed. Enforcing the collection of unpopular taxes, for example, or sidelining Congress in order to implement an unpopular treaty. But if the opportunity arose to achieve a major Democratic-Republican objective through the use of the same Executive Branch prerogatives? Well, perhaps in that case it made less sense to stand on principle and more sense to simply make use of the tools that were at one’s disposal. President Jefferson’s actions during the events surrounding the Louisiana Purchase (1803) speak very much to this conclusion, grounded as they were upon the same style of executive leadership that he had earlier decried when deployed by Washington and the Federalists.

The objective of Jefferson’s concomitant negotiations with Napoleonic France, of course, was the purchase by the United States of the French territory of Louisiana for the purpose of opening up this vast, potentially fertile, and sparsely populated region to American settlement. Or at least that’s what the objective ultimately became. Initially seeking an end to long-running tensions between the United States and whichever European colonial power governed the territory immediately beyond the Mississippi River, President Jefferson sent envoys Robert Livingston (1746-1813) and James Monroe (1758-1831) to Paris upon receiving word of the transfer of Spanish “Luisiana” back to France for the purpose of offering to buy only the city of New Orleans. During the years of Spanish governance between 1762 and 1801, the inhabitants of the states and territories on the American republic’s western frontier had often struggled at the behest of Spanish authorities who denying American access to the Mississippi and the port facilities at New Orleans, or allowed access, or required conditions, or required payment. Since the newly-elected Jefferson had gained office thanks in no small part to the support of westerners in states like Kentucky and Tennessee, he was naturally eager to bring an end to the economic turmoil that these changing policies had often wrought, and was likely also sensitive to the potential opportunity presented by the repossession of Louisiana by Napoleonic France.

Unlike the Spanish, who had been quite sensitive of their sovereignty over the territory in question, Napoleon seemed far more invested in maintaining and expanding his authority in Europe than in trying to export that authority to the North American interior. Granted, there were diplomatic rumblings that French authorities may have intended to use Louisiana as a source of staple goods with which to supply their sugar-rich possessions in the Caribbean. That said, the viability of such a plan largely relied on Napoleon successfully quelling the slave revolt then tearing through the island of Sainte-Domingue, and circa 1802 this was far from a certainty. Jefferson accordingly proceeded with a certain degree of haste. If the French were in need of funds to continue their war with most the rest of Europe, and if the reassertion of French authority in the West Indies was still something of an open question, perhaps it would be possible for the United States to purchase just New Orleans and its environs for a suitably impressive price while leaving the rest of Louisiana for Napoleon to dispose of as he would. Though President Jefferson was reportedly uncomfortable with even this modest proposal – he felt disinclined to substantiate French claims to American territory by agreeing to purchase any part of Louisiana, and further wondered at the constitutionality of the federal government unilaterally expanding American territory –the potentially time-sensitive nature of the circumstances at hand prompted him to action.

Fortunately for Jefferson, French fortunes in the Western hemisphere rather quickly took a turn for the worst. At about the same time that the American envoys arrived in Paris to make their offer of ten million dollars for the transfer of New Orleans to American control in the spring of 1803, French authorities had finally come to accept that the recapture of the aforementioned sugar colony of Sainte-Domingue was no longer feasible. This being the case, it accordingly no longer appeared necessary for a French presence to be maintained in North America, leading Napoleon to instruct his emissaries to offer the American delegation the whole of Louisiana for a mere fifteen million dollars. Livingston was understandably taken aback by the offer, between the sheer size of what he was now being asked to purchase and the shockingly low price of three cents per acre, and was unsure, in the immediate, how he should have responded. President Jefferson had only authorized him to purchase the city of New Orleans, and only for a maximum of ten million dollars. But five million dollars more for a parcel of land that would instantly double the size of the United States? Surely, he reasoned, Jefferson would see the wisdom in accepting such a proposal. And what if the French rescinded the offer? What if they refused to sell New Orleans on its own? Livingston had been instructed to secure the purchase of the valuable port city and buying all of Louisiana would certainly have accomplished that. After less then two weeks of contemplation – April 11^th to April 30^th – the American delegation ultimately accepted the French proposal. The resulting purchase treaty was announced on July 4^th, 1803 and arrived in Washington, D.C. ten days later.

It was at this point in the saga of the Louisiana Purchase that the Jefferson Administration was made to confront and reconsider its own collective understanding of the nature of executive power. When all that the United States was attempting to purchase was the city of New Orleans and its immediate environs, the potential hurdles attending its integration into the American republic doubtless seemed quite minor. Congress already claimed sovereignty over the region immediately to the east along the coast of the Gulf of Mexico, administering it as the Mississippi Territory since 1798, and it would doubtless have been a relatively trivial matter to graft this new cession onto the same. The federal government had established its ability to organize and govern non-state lands as far back as the 1780s with the creation of the Northwest Territory in the Great Lakes region, and the addition of a relatively small strip of sea coast to one of its existing administrative units would likely have raised few eyebrows. But Louisiana, at some eight hundred thousand square miles in total, was not a relatively small strip of coastline. On the contrary, it was a vast expanse of land roughly equal in size to the whole of the contemporary United States, and its annexation would accordingly place the federal government in direct control of a tremendous amount of land and resources. For a faction such as the Democratic-Republicans, whose origins lay in a categorical rejection of arbitrary executive power, the consequent need to govern Louisiana without a representative legislature or elected magistrates understandably presented something of a quandary. Eager though Jefferson and his supporters most certainly were to provide for the growth and expansion of agriculture in the United States of America – as opposed, say, to the mercantilism that seemed to dominate many of the states on the Atlantic seaboard – they were unsure whether or not this objective could be achieved – or indeed should be achieved – if it meant expanding the reach of the federal government in the process. At least two major factors complicated the resulting discussions.

For one thing, there could be no denying the fact that the inhabitants of French Louisiana – such as they were in 1803 – were very unlike those of the contemporary American republic. Whereas most American spoke English, adhered to some form of Protestant Christianity, and were familiar with the English style of Common Law jurisprudence, the settled residents of Louisiana – that is to say, those who were not members of one of the many native communities who lived within its borders – mainly spoke French or Spanish, were predominantly members of the Roman Catholic faith, and were accustomed to the Roman-derived Civil Law tradition common in contemporary France and Spain. Not only that, but no small number of the inhabitants of the city of New Orleans were members of the gens de couleur community, being free people of total or partial African ancestry who owned property and businesses and were possessed of the same basic legal rights as the majority of their countrymen. But while the terms of the treaty authorizing the transfer of Louisiana from French to American control mandated that,

The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess [,]

The sum of the differences named above – particularly in light of the contemporary state of American racial politics – presented a significant potential hindrance to the achievement of the same. 

            From the perspective of the Jefferson Administration – and indeed from that of most Americans of the era – the existing inhabitants of Louisiana were not very well suited to the duties and responsibilities which they believed were inherent to the possession of American citizenship. The Louisianais were used to being subjected to arbitrary authority, had no taste for or familiarity with republican, citizen-led government, and were almost completely unfamiliar with the basic principles of Anglo-American style Common Law jurisprudence. While not necessarily prepared to shirk their nation’s responsibility to incorporate these people into the citizen population of the United States of America, members of the reigning Democratic-Republican faction and the opposition Federalists accordingly tended to agree that the resulting process was bound to be a lengthy one. The people of Louisiana would need to be taught the principles of good citizenship, the fundamentals of the American legal system, and even the basics of the English language, and all before they could be permitted to form a legislature or elect their own executive. It would have been impossible to say for certain how long this would take, though surely no one doubted that the period was best measured in years, if not decades. And in the meantime? Well, in the meantime two things would have to happen which most Americans were sure to find distasteful.

First, an administrative framework would have to be established – likely on the model of the aforementioned Northwest Territory – by which the federal government would legally oversee the region in question. Under the terms of such an arrangement, it would have been left to the President to appoint a Governor, a Secretary, and a set of justices to administer the territorial court system. The inhabitants would normally have chosen representatives from among themselves to serve in the lower house of a territorial legislature, as well as a delegate to speak on their behalf in Congress, but given the aforementioned “unsuitability” of the existing residents of Louisiana to the task of self-government this would seem to have been an unlikely outcome in the immediate. In consequence, until such time as the federal government decided that the residents of the relevant organized territory had become fully acclimated to the American style of republican government – a decision authorities would arrive at presumably based on their own criteria – the Executive Branch in particular would possess virtually unchecked power over what transpired therein. The potential effects of such an arrangement were troubling, to say the least. In time, for example, wasn’t it possible for the American chief executive to become so accustomed to exercising near-absolute power in Louisiana that they might refuse to give it up? And in the meantime, was it entirely reasonable for the American people to expect their government to behave arbitrarily in one part of the nation and responsibly in another without the impulses conditioned by the former ever bleeding over into the latter? Perhaps future presidents, having felt the extent of their powers in Louisiana, would come to resent the limits placed on the same in the rest of the United States. Surely this would not have been a healthy outcome for the perpetuation of American liberty, regardless of the resources or opportunities the possession of Louisiana might afford to the American people.

And then there was the other implication of the cited clause of the relevant purchase treaty, the consequences of which may have been more troubling still. Until such time as the existing inhabitants of the territory could be, “Incorporated in the Union of the United States,” the treaty stated, the federal government was bound to ensure that the individuals in question were, “Maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess [.]” As it was more or less a given that the “incorporation” of the Louisianais into the general citizenry of the United States of America would not be completed until some time after the transfer of Louisiana to American control, this meant that for an indefinite period the territory would continue to be governed according to the laws and customs familiar to its inhabitants. Civil law, then, would continue to form the basis of the territorial legal system, and free people of color would continue to have their property rights recognized and protected. Naturally this would be met by the Louisianais themselves with pleasure and relief, providing, as it was bound to, some degree of stability while their adjusted to their changing circumstances. But how were the inhabitants of the rest of the United States supposed to interpret such an act? English-derived Common Law formed the basis of understanding for most of what was written in the United States Constitution. Trial by jury, habeas corpus, and the entire court system of the American republic were all deeply rooted in the Common Law tradition, and it was consequently a subject of both comfort and agitation that the principles of the Common Law would continue to apply no matter where in the union of states a given citizen chose to reside. But what if someone from Virginia, say, or Georgia decided to migrate into the newly acquired Louisiana? Though they would not have left the confines of the American republic, they would nonetheless find themselves in a territory possessed of an altogether alien system of laws. Would they continue to be guaranteed a jury trial, or the right to be informed of the reasons for their detention, simply because of their American citizenship, or would the legal procedures of Louisiana take precedence? If civil law was to form the basis of the justice system, would the Constitution – the text of which explicitly guarantees the rights of habeas corpus and trial by jury – even apply? Was it possible for the President and the Senate – in light of the authority conferred on them to make such treaties as were legally biding in all cases – to create a jurisdiction within the United States that existed outside of the auspice of the Constitution? Depending on how these and similar questions were answered, the consequences for American liberty were potentially terrifying and profound.

Cato V, Part XXII: The Same Causes, contd.

While the passage of the Militia Act by Congress in 1792 was, like Washington’s later invocation of the same, an entirely pragmatic reaction to an apparent crisis, it also represented a significant shift in American political philosophy. Militia, by and large, were thought to be preferable to a standing army by most Americans in the Revolutionary and post-Revolutionary eras. Unlike the Continental Army or the British Army – which were organized, directed, and paid by a central authority often located at some distance from the theater of action – militias were controlled by a combination of the state governments and the various local communities in which their members resided. This fact tended to make militias more trustworthy in the eyes of the average American citizen. In the late 18^th century, after all, most Americans still identified themselves with their state rather than with the nation as a whole and were far more likely to invest feelings of comfort and safety in representations of state power than in those of any manner of national administration. Expressions of military authority were very much included. Unlike a professional army officer, for example, whose orders were handed down to him by a potentially distant authority, and who quite probably possessed no attachment in particular to the region or community it was his nominal duty to protect, a militiaman was never supposed to operate beyond the confines – or outside of the political authority – of the state he called home. This was because militias were supposed to be defensive rather than offensive, amateur rather than professional.

This latter quality in particular – the amateur nature of the very concept of a militia – essentially embodies the other reason most Americans in the late 18^th century tended to distrust professional militaries. A professional soldier was someone whose livelihood more or less depended on his following the orders that were handed down by his superiors. Depending on his position he might perhaps possess sufficient freedom to raise his concerns or even express his dissatisfaction, but this leeway could only extend so far. If he wanted to remain in the military, and if he furthermore wanted to gain promotion – and all of the fame, glory, and respect that went with it – he would at some point have to make his peace with doing things that he didn’t necessarily agree with. For a community who had come to associate professional soldiery with tyrannical governments – as the inhabitants of the late 18^th century United States most definitely had – this manner of obedience was bound to be a source of concern. In the event, say, that the government of a given state objected to the terms of a piece of federal legislation and opted to resist the implementation of the same, what reason would a professional soldier in the employ of the federal government possibly have for being anything less than zealous in attempting to enforce the law in question? Failure to follow orders would almost certainly result in discipline, perhaps even dismissal. It might be somewhat distasteful, having to treat one’s fellow citizens as though they were an enemy population, but such is the nature of military life. Today it’s putting down insurrectionists in Massachusetts or New York, tomorrow it’s garrison duty in the Northwest Territory. One goes where one is sent, does what one is told.

A militia, by comparison, is rather the opposite of professional. Its members, far from being career soldiers whose way of life depends on their willingness to follow orders, are part-time defenders of the lives of livelihoods of the communities from which they are drawn. They are trained, of course, according to a reasonable standard of quality, and armed, and uniformed, and expected to assemble when mustered and obey the orders of state authorities. But when not in uniform, they are essentially indistinguishable from any other member of the locale that have been assigned to defend. In the context of the late 18^th century Unites States, this fact doubtless made the idea of a militia far less troubling to the average American than that of a standing army. A professional soldier, to their eyes, was a man defined by discipline, obedience, and the ability to take lives if called upon. His accordant malleability, while potentially useful, sets him apart from most of his fellow human beings, perhaps even to the point of making him an object of fear and disquietude. A militiaman, by contrast, was just another man. When not in arms he was a baker, a lawyer, a farmer, or a merchant. He serves because it is his duty, and because he understands the need to protect his family, his friends, and his community as well as he feels the need to protect himself. He does not enjoy military life, or seek respect by adhering to it, but makes what sacrifices are expected of him as best he can. He is not foreign, or frightening, or in any way untrustworthy.

While granting that the terms of the Militia Act of 1792 did not in itself transform the comforting and familiar American militiaman into the disquieting and unfamiliar professional soldier, that selfsame legislation – and the manner by which it was invoked in 1794 by the Washington Administration – did, in a very real sense, move the former substantially closer to the latter. The state militias were not altered in form or function, of course. They were still to be trained and organized at the direction of the states themselves, and their membership was still to be comprised of part-time soldiers called to arms only during an acute military emergency. What the terms of the relevant legislation did do, however, was allow the Executive Branch of the federal government – in cooperation with a single representative of the Judicial Branch – to both decide what constituted an acute military emergency and take control of the militias once such a decision had been made. The militias could not act as quickly as a standing army, having to muster before they could be deployed, and their training and equipment was bound to be inferior to those of a professional military. But their numbers, when combined, were bound to exceed those of a professional, peacetime army of the period. Consider, to that end, the following.

Pursuant to the invocation of the Militia Act by the Washington Administration in 1794, the force ultimately assembled numbered close to thirteen thousand. At the Battle of Saratoga (1777), one of the largest engagements of the entire Revolutionary War, the Continental Army counted some fifteen thousand men under arms by the time that the British surrendered. The Washington Administration’s ultimate response to the Whiskey Rebellion therefore constituted, not only the summoning of a military force under federal control that rivaled some of the largest armies fielded by the United States during the Revolutionary War, but it also represented the first time that such a force had been summoned on the initiative and at the command of a single individual in the short history of the American republic. Washington, it was true, had also been Commander-in-Chief of the Continental Army in 1777, and in that capacity had exercised a considerable degree of autonomy as to where the troops under his authority were sent. That said, he had also been under the authority of Congress, whose members were free to override, replace, or remove him at their pleasure. This was no longer the case in 1794. Having been elected by popular(ish) vote, Washington was the sole leader of an entire branch of the federal government possessed of almost complete autonomy – except where specified by the Constitution – from the oversight of either Congress or the federal courts. Congress maintained the sole responsibility for declaring war, of course, as well as for allocating the financial resources necessary for the United States to deploy whatever military forces happened to be in its service. But the President remained the Commander-in-Chief of those forces, be they professional or amateur, and was by no means required to consult with Congress before exercising his authority within that sphere.

   

There remained ambiguities, to be sure, as to how the President might actually take command of the state militias pursuant to the text of Article II, Section 2. It wasn’t clear, for example, how or why the Chief Executive might call the militias into federal service. Thankfully, the passage of the aforementioned Militia Act effectively answered most of these questions. Yes, the President did require the acquiescence of a Supreme Court Justice to call the state militias into federal serve, but that was all he required. Once this prerequisite was met, the Chief Executive was free to summon a potentially massive number of men under arms and direct them to whatever part of the country he felt the relevant crisis required. This would seem to have made the state militias a kind of “standing-army-in-waiting.” They were not career soldiers, of course, and were bound to lack the training and resources expected of a professional military force. Nonetheless, they represented a tremendous potential military resource in terms of their numbers and availability. And while it was doubtless true that militiamen from Pennsylvania might hesitate to use force against their fellow Pennsylvanians, militiamen from Virginia might not be so squeamish. The President, after all, was free to summon militia forces from anywhere in the country and to deploy them to anywhere in the country. Might he not thus seek to avoid potential difficulties by ensuring that only out-of-state militias were deployed to the crisis area in question? Was this not a perfectly sensible precaution?

The response of late 18^th century Americans to this expansion of the practical authority of the office of President was, in the main, somewhat ambiguous. While, as aforementioned, the dearth of militia volunteers in 1794 resulted in the implementation of a draft, which in turn led to riots in a number of urban centers, the Washington Administration was ultimately able to raise a force of some thirteen thousand men. And, upon deploying roughly half of those men to the purported crisis area in Western Pennsylvania, the assembled militia force did succeed in dispelling the tax resistors and their various supporters. Hardly any blood was shed in the process; militiamen acting under the direction of the federal government were not at any point required to engage in a significant exchange of fire with their fellow countrymen. But while in a different context this may have served to cast some doubt on the efficacy of the national government’s newfound military power, the actual outcome was substantially beneficial for the Washington Administration and its Federalist supporters. The national government, under Washington’s direction, had shown itself to be willing and able to deploy the resources at its disposal for the purpose of enforcing the law of the land. A call had gone out, men had been mustered, and a force had been deployed to the trouble spot. Not only was order thereafter swiftly restored, but the entire policy program of the nascent Federalist faction received a significant popular boost.

Granted, the Whiskey Tax itself remained notoriously difficult to collect, to the point that both the Washington Administration and its immediate successor ceased to devote much effort to its enforcement. All the same, the Federalist candidate, sitting Vice-President John Adams (1735-1826), defeated Democratic-Republican stalwart Thomas Jefferson in the next presidential election in 1796, and Federalists retained strong majorities in both the House and the Senate. Notwithstanding the popular discontent that continued to linger in Western Pennsylvania, the demonstrations that had accompanied the aforementioned militia draft, and the ongoing antipathy many Americans continued to feel towards the concept of a centralized government possessed of substantial military resources, the expansion of the practical power of the Executive Branch that President Washington had overseen was broadly accepted by the American people. Not everyone was particularly sanguine, of course, with the resulting enhancement of federal authority. Over the next several years, pamphlets were printed, speeches were delivered, and political societies were organized, all for the purpose of denouncing the actions of the Washington Administration and rallying support for a Democratic-Republican alternative. And in time, owing both to further discontent stirred up the Jay Treaty debate and the actions of the Adams Administration during an undeclared naval conflict between the United States and Revolutionary France – not the least of which was the passage by Congress of the notorious Alien and Sedition Acts (1798) – these efforts did bear fruit. But in the immediate, though the government of the United States of America had claimed for itself more power than either the Framers of the Constitution or its supporters in the state ratifying conventions  had ever believed would be the case – with the probable exception of Alexander Hamilton – public opinion was generally quiescent. A major backlash was slow in coming and arrived ultimately in the form of a democratic revolution rather than an armed one.

The sense of triumph which the Washington Administration doubtless derived from this outcome is arguably embodied in the aforementioned explanation which Washington himself offered concerning the pardons he extended to the two Whiskey rebels sentenced to death. “Though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested,” he declared in his seventh State of the Union Address,

Yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

Consider, for a moment, Washington’s choice of words. He did not decry the very thought of sentencing two of his countrymen to death for resisting a law which they felt was unjust. Nor did he seek to remind his fellow Americans that resistance to a government perceived as tyrannical and unrepresentative was one of the fundamental principles upon which the American republic had only recently been founded. Rather, in a manner which his critics among the Democratic-Republicans doubtless compared to that of a monarch who seeks to be viewed as equally firm and merciful, he asserted his belief that the maintenance of the public good required a government to promote “moderation and tenderness” as well as dignity and safety. His pardon of the otherwise doomed rebels, then, far from being in recognition of the fact that they had done nothing so abhorrent to American sensibilities as to warrant their deaths, was instead a gesture intended to project a sense of magnanimity on the part of the national government for the purpose of engendering the respect and affection of the American people. 

 

Washington’s expression of this sentiment did not qualify him for the title of tyrant, of course, or otherwise indicate that he had anything less than the wellbeing of his countrymen in mind. But the tone thereof arguably did represent a new phase in the history of executive power in the American republic. The President of the United States evidently no longer needed to justify the use of coercive authority beyond what the law explicitly required. Recall, for a moment, the circumstances of the Anglo-American crisis of the 1760s and 1770s. Not only did the representatives of the various colonies/states assembled in Congress demand a rigorous explanation from Parliament and the Crown as to their collective authorization of military force in America, but they also went to significant lengths to justify their own actions – up to and including taking up arms – by way of appeals to political and moral philosophy. It wasn’t enough for successive British governments to explain to their nominal constituents in America that the presence of military personnel in the colonies was entirely in keeping with contemporary British law. Nor, for that matter, did the colonists seem to believe that it would have been sufficient to simply take up arms against Parliament and the Crown without first establishing why such a course of action had become necessary. In the 1760s and 1770s, it seemed, Americans required the use of military force to be grounded upon a thorough and convincing analysis of commonly understood moral and legal principles. This may have constituted an extraordinary expectation, but it appeared at that time that most Americans considered the deployment of armed soldiery among a civilian population to be an extraordinary circumstance.

This attitude seemed to have softened considerably by the middle of the 1790s. There were certainly objections raised to Washington’s invocation of the Militia Act in response to the steady escalation of the Whiskey Rebellion over the course of 1792, 1793, and 1794. Many people did not much like the idea that American militiamen were going to be deployed on the orders of an increasingly centralized government for the purpose of arresting their fellow citizens and enforcing obedience to what many of them considered to be a thoroughly unjust law. But while the aforementioned draft riots constituted perhaps the most severe expression of this sentiment, the plans devised by the Washington Administration to meet the supposed challenge posed by the Whiskey Tax rebels nonetheless proceeded apace. Indeed, it is noteworthy that, determined to undertake an extraordinary – or at the very least wholly unprecedented – exercise of federal power, President Washington did not seem to feel the need to make any extraordinary gestures. He did not address the various members of Congress for the purpose of explaining why he felt it necessary to federalize the state militias and send them to confront the insurrectionists in Pennsylvania, or solicit their advice, or request their approval. Nor did he meet and confer with the governors of the states whose citizens he was preparing to call into federal service. The law and the Constitution required only that he request the authorization of a single Supreme Court Justice, which he quickly sought and received. The only additional action which he took was to issue a proclamation on August 7^th, 1794, the reasoning deployed therein being somewhat less than morally rigorous.

Rather than attempt to explain to his countrymen why it was that the Whiskey Tax itself was so necessary to the public good as to justify the use of military force to see it collected, Washington instead seemed intent on establishing it as a principle that disregard for the law – any law – was cause enough for coercive action. To that end, having first described the insurrectionists in Western Pennsylvania as, “Armed Banditti” – which is to say, little better than outlaws, thieves, or brigands – he went on to justify the deployment of the various state militias by asserting that, “Many persons in the said western parts of Pennsylvania have at length been hardy enough to perpetrate acts which I am advised amount to treason, being overt acts of levying war against the United States [.]” Treason, it bears remembering, remains among the most serious crimes a person can be accused of committing under the laws of the United States, and is one of the few explicitly defined in the text of the Constitution. As stated in Article III, Section 3, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” By essentially invoking this definition, Washington arguably dismissed any further need to justify the use of coercive military force. The commission of treason was reason enough to bring to bear every resource at the disposal of the government so offended.

The text which followed this rather startling accusation did not go much deeper into the social or moral priorities which the proper enforcement of the Whiskey Tax was supposed to fulfill. Indeed, the tax itself hardly seemed to factor into Washington’s thinking at all. Rather, it was the mere fact that the law was being broken in so brazen and widespread a manner that he felt it necessary to deploy the military resources of various states. Having denigrated, at length, the intentions of those, “Whose industry to excite resistance has increased with every appearance of a disposition among the people to relax in their opposition and to acquiesce in the laws [,]” he accordingly went on to declare of the actions he was preparing to take that,

The essential interests of the Union demand it, that the very existence of Government and the fundamental principles of social order are materially involved in the issue, and that the patriotism and firmness of all good Citizens are seriously called upon, as occasion may require, to aid in the effectual suppression of so fatal a Spirit.

The “patriotism and firmness” of those residents of Western Pennsylvania whose lives and livelihoods had been negatively impacted by the Whiskey Tax, and who chose to seek relief through organized resistance, were evidently of no consequence, perhaps because their disobedience of the law meant that they were no longer, “Good Citizens [.]” What seemed to matter, on the contrary, were abstract concepts like, “Social order,” “The essential interests of the Union,” and, “The very existence of Government [.]” What the Washington Administration hoped to achieve by enforcing the Whiskey Tax, or what the supposed rebels hoped to achieve by resisting it, was evidently of little importance. The law had been broken, and that in itself justified treating the offenders – until such time as “moderation and tenderness” were called for, of course – as enemies of the American republic.

That Washington felt compelled to approach the Whiskey Rebellion in such a manner, and the fact that his chosen approach was broadly accepted, augured favorably for the office of President and the authority that it could claim to possess. Above and beyond the fact that the Federalists appeared to have successfully demonstrated both the need for a active, powerful central government and the efficacy thereof, the stage had effectively been set for subsequent occupants of the office of President to continue expanding the prerogatives at their disposal in the foreign and domestic spheres alike. Not only had the Washington Administration established the primacy of the American chief executive in matters of diplomacy and widened the scope of action available to the President in times of national crisis as matters of legal and political process, but they had also secured the far more valuable commodity that was widespread social sanction. The American people had seen the first President of the United States assert himself in a number of ways far beyond what the plain text of the Constitution would otherwise have indicated was possible. Did they cry foul? Yes, some of them did. Did they denounce the President as a tyrant? Again, yes, some of them did. But what they didn’t do was channel their discontent – as they had but twenty years previous – into an armed campaign of resistance and revolution. Rather, in general, they responded with approval. Notwithstanding the manner in which many of them initially thought the office of President was supposed to function, Washington defined the manner in which it was going to function from that point forward, and the American people seemed to alter their expectations accordingly. Even self-confessed members of the Democratic-Republican faction – who did absolutely consider Washington’s actions to be tantamount to tyranny – refrained from calling for the violent overthrow of the reigning Federalist hegemony. Rather, seeming to at least partly accept the status quo that Washington had established, they instead dedicated themselves to defeating their opponents at the polls. If subsequent Presidents of the United States of America were going to be as powerful as Washington had shown himself in practice, then it was the responsibility of the Democratic-Republicans to ensure that only someone who could be trusted to abstain from abusing their authority – i.e. a Democratic-Republican – ever held the office again.

Cato V, Part XXI: The Same Causes, contd.

The outcome of the so-called “Whiskey Rebellion” in 1794 arguably resulted in an assumption of presidential authority on the part of George Washington similar to that which would later emerge from the debate surrounding the Jay Treaty in 1795. But while the implications of the incident in question were quite substantial, the inciting circumstances were comparatively mundane. Seeking to pay down the national debt that had recently been consolidated by way of an assumption of existing state debts – as mandated by the terms of the Funding Act of 1790 – Treasury Secretary Alexander Hamilton worked with Congress during the first half of 1791 to levy a series of taxes on domestic products for the purpose of raising a federal revenue. The first of these excises – a test balloon, of sorts – was fixed upon the production of distilled spirits, thought to be an acceptable target for taxation since the product in question was deemed a luxury. The resulting bill became law in March 1791, with President Washington appointing the necessary officials and assigning them to revenue districts the following November. But while the “Whiskey Tax,” as it became known, had been uncontroversial enough to achieve affirmative votes in both the House and the Senate, the people most likely to be affected by its provisions quickly showed themselves to be nowhere near as sanguine at the prospect of having to pay it.

In Western Pennsylvania, it turned out, the operation of small stills was a pervasive means by which grain farmers supplemented their often-meagre incomes. This was particularly true in the region that lay beyond the Appalachian Mountains, where excess grain could be turned into whiskey that was much easier to transport to market in the East. In addition, resulting from pervasive cash shortages, whiskey often served as a means of exchange. Indeed, some people near the bottom of the regional economic hierarchy were even paid in whiskey for their labor. A tariff on distilled spirits in this part of the country would accordingly have amounted to a restriction on agricultural productivity, a damper on local economic competitiveness, and even a form of income tax. The result of its adoption, unsurprisingly, was popular discontent. Angered by what they perceived to be the federal government’s preferential treatment of large, industrial distillers located in the East – the substantial incomes of which permitted them to pay a flat tax of six cents per gallon rather than the piecemeal nine cents per gallon that smaller private distillers had no choice but to pay – and already exasperated by the Washington Administration’s outwardly anemic response to frequent attacks by local native populations, small-scale farmers joined with laborers and local merchants in resisting the efforts of federal revenue officials. Tax collectors were threatened and driven off, people who provided them food or lodging were harassed or even beaten, and the offending tax itself was roundly denounced. When these actions, alongside formal petitions seeking the repeal of the excise, failed to garner a response from the federal government, the tax resistors took the next logical step. Beginning in July of 1791, they began the process of organizing.

As assembly of delegates from the surrounding counties first met in Pittsburgh in September of 1791. Doubtless due to the influence of the moderates yet in attendance, plans for armed resistance were laid aside and further petitions were drafted requesting aid and relief from both the Pennsylvania Assembly and the House of Representatives. But while, pursuant to these requests, some degree of respite was granted in the early spring of 1792 – chiefly in the form of a one-cent reduction in the cost per gallon – this outcome wholly failed to mollify the majority of the affected population. Non-violent petitions consequently gave way to violent resistance over the course of the next several months, with tax collectors and court officials being subjected to the Revolution-era punishment of tarring and feathering as the offended populations began to complain that their plight was no different than that of the American colonists who had refused to pay the taxes levied by Parliament in the 1760s and 1770s. A second convention summoned in August of 1792 – also in Pittsburgh – accordingly dispensed with talk of moderation and conciliation, turning instead to the prospect of armed resistance. When news of these developments reached the Washington Administration, the reaction fell somewhere between concern and embarrassment. Not only were the President and his advisors sensitive of the need for the newly-minted federal government to offer a firm response to any threats to its authority – lest it begin to lose the confidence of the American people – but it was quite naturally a source of mortification that the rebellion in question was occurring in the same state – i.e. Pennsylvania – where said government was headquartered. Eager, as ever, to project firmness and resolve, Treasury Secretary Hamilton penned a proclamation for Washington’s signature which denounced non-payment of federal taxes and enjoined both court officials and private citizens to aid in the enforcement of federal laws. Washington signed the document on September 15, 1792, upon which it was widely printed in broadsheet form and in a number of prominent newspapers.

Notwithstanding this assertion of federal authority, the tax resistors continued to harass federal officials, threatened those who offered them aid, and resolutely refused to pay the offending tax right through to the summer of 1794. It was at this point that events rather quickly came to a head. Having served a round of recently-issued federal writs against a number of local distillers who had persistently refused to pay the excise, local planter and tax official John Neville (1731-1803) found his home surrounded on the night of July 16^th by a force of some thirty local militiamen. Over the course of the next twenty-four hours, Neville fired several times at his harassers – wounding at least one of them – and was reinforced by a small contingent of US Army soldiers dispatched from Pittsburgh while the militia force swelled to nearly six hundred men in total, all under the command of Revolutionary War veteran James McFarlane. Following a round of negotiations resulting in the safe evacuation of Neville’s family – and the covert departure of Neville himself – another attempt by McFarlane to discuss terms resulted in his being fatally shot by the defenders, the effect of which was the final capture of the property by the militiamen. McFarlane’s funeral, held on July 18^th, subsequently served to rally the majority of the remaining moderates around a course of resistance to federal power. At Braddock’s Field, just east of Pittsburgh, some seven thousand people – many of whom did not own distilleries but had harbored economic grievances against the state and federal governments and eagerly sought an outlet for their frustrations – gathered on August 1^st to discuss possible plans of action. The French Revolution was spoken of favorably, with some even calling for the guillotine to be brough to America. Many called for a march on Pittsburgh, and for the town to be looted and razed. Some even advocated for the surrounding counties to declare their independence from the United States and seek aid from Britain or Spain.

Now confronting by what appeared to be an armed insurrection in Western Pennsylvania, President Washington finally gave way to the urging of certain members of his cabinet – Hamilton chief among them – and authorized the use of military force. Specifically, he called into federal service a force of militia drawn from Pennsylvania, Maryland, Virginia, and New Jersey pursuant to the terms of Article II, Section 2 of the Constitution – i.e. “The President shall be Commander in Chief […] of the Militia of the several States, when called into the actual Service of the United States [.]” The Militia Act of 1792 had helpfully clarified the nature of this authority by stating that the President retained the right to federalize the state militias,

Whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act [.]

All that was required for the federal government to proceed was the certification of a Supreme Court Justice that the crisis in question was truly beyond the ability of local law enforcement to contain. Justice James Wilson (1742-1798) delivered exactly that on August 4^th, 1794, whereupon President Washington issued a proclamation declaring his intention to call out the state militias to suppress the ongoing rebellion in Pennsylvania. Amidst a dearth of volunteers, the deployment of a draft, and a series of anti-draft riots in several of the affected states, a force of nearly thirteen thousand was raised, with roughly half dispatched to Carlisle, Pennsylvania before proceeding on to Pittsburgh.

            While this selfsame militia force did meet with some small degree of resistance during its westward march in the late summer and early autumn of 1794 – several civilians in Carlisle were killed resisting arrest, another was mortally wounded during an altercation with a militiaman – the final confrontation anticipated by some and dreaded by others never actually materialized. Washington travelled to the region personally to both review the assembled militia and confer with local representatives but departed before the force reached the affected region. Placed under the command of Revolutionary War veterans Henry Lee III (1756-1818) and Daniel Morgan (1736-1802), the federalized troops finally entered Western Pennsylvania in October 1794, at which point the incipient rebellion they had been sent to confront more or less evaporated. The leaders of the pro-resistance faction almost all fled westward into the Northwest Territory or took refuge in the mountains. Of those that remained, only a handful – twenty-four in total – were ultimately arrested and brought back to Philadelphia for trial. These men arrived in the American capital on Christmas Day amidst a parade by the militia accompanied by the ringing of church bells and the firing of cannons. In the end, only ten men were tried for treason, and only two were convicted and sentenced to death. His point having been made – namely that the federal government was not to be defied in the enforcement of the laws that it devised – Washington quickly moved to pardon them both. Seeking to explain his decision to be merciful, the President declared in his seventh and penultimate State of the Union Address one year later that,

Though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

Though the federal government had thus demonstrated its willingness to enforce the terms of its own legislation, the Whiskey Tax remained only sparsely collected for the remainder of the Washington Administration and into the Adams Administration. It was finally repealed in 1802, pursuant to the guidance of President Jefferson.

            As with the events which spiraled out of the Jay Treaty debate in 1795, the circumstances and the outcome of the Whiskey Rebellion in 1794 served to demonstrate the inclination of George Washington as President of the United States to interpret certain of the more equivocal aspects of the Constitution as lending his office specific and significant practical power. The Constitution, remember, only stated that, “The President shall be Commander in Chief […] of the Militia of the several States, when called into the actual Service of the United States [.]” It was accordingly left ambiguous exactly when this might be the case, or how such a transfer of authority might function, or whether any other branches of the federal or state governments might exercise some degree of oversight. The aforementioned Militia Act of 1792 – passed, it bears mentioning, by a Federalist majority in Congress – cleared up these vagaries by laying out the circumstances within which the President could legally assume command of the state militias, but it nonetheless remained from some occupant of that selfsame office to assert the concomitant authority according to their own rationale. This, of course, is exactly what Washington did. Responding to what appeared to be an armed rebellion on the American republic’s western frontier – and urged on at length by advisors like Alexander Hamilton – President Washington determined that the situation warranted calling the state militias into federal service and sending them to enforce the laws that were then being flouted. The result was not particularly tidy – there were deaths, as aforementioned, and draft riots, and pitiful scenes of American militiamen leading their fellow citizens through the streets of the capital in irons – but it was at the very least outwardly successful. Washington had ensured that the federal government would not be trifled with, and that the kinds of post-Revolutionary agitations that had led to the likes of Shays Rebellion (1786) would no longer be tolerated.

            In an era following the American Civil War (1861-1865) – during which time the Lincoln Administration mobilized hundreds of thousands of troops and oversaw the slaughter of over half a million Americans, all with the stated intent of enforcing federal law – Washington’s almost entirely bloodless deployment of a mere thirteen thousand militiamen to Western Pennsylvania may not seem like much of an assertion of power. Notwithstanding the relatively infinitesimal number of casualties involved, however, it very much was. Washington may not have overseen the destruction of thousands of American lives in the name of law and order, but he did make a number of assumptions about that nature of the power at his disposal as President that had serious implications for the future of the American republic. Consider, by way of example, the circumstances which resulted in the passage of the aforementioned Militia Act. Far from seeking to enable the President of the United States to respond to potential civil disturbances, the intended purpose of the legislation in question was to empower the federal government to bring the military resources of the various states to bear in the event that the native peoples then successfully fighting off American settlement in the Great Lakes region ever decided to go on the offensive. It was only a year prior, in 1791, that General Arthur St. Clair (1737-1818) had led a contingent of the much-downsized American Army to one of the worst defeats in its history at the Battle of the Wabash in present-day Ohio, and the Washington Administration was in something of a panic to prevent the situation on the frontier from deteriorating any further. The result, in addition to a dramatic enlargement of the peace-time military of the United States of America – the final result of which was the defeat of the relevant native confederacy in 1794 and the seizure, by treaty, of most of what would become the state of Ohio – was the aforementioned legal clarification of the authority of the President to summon and command the various state militias.

            Bearing these circumstances in mind, Washington’s invocation of the Militia Act in response to the events of the Whiskey Rebellion in 1794 constituted something other than what the law was designed and intended to accomplish. The threat (presumably) facing the United States at the time of the Militia Act’s passage was a confederacy of native tribes empowered by their victory over Arthur St. Clair to potentially invade settled areas of Pennsylvania and Virginia. The threat that led to its actual invocation was a campaign of civil resistance on the part of a group of disgruntled residents of Western Pennsylvania who felt as though their economic and political rights were being consistently ignored. The resulting leap of logic was both pragmatic and precedential. Desirous of some means to confront what appeared to be an increasingly organized insurrection on the Western frontier, Washington and his Federalist advisors seized upon the one passage of the Constitution and the one piece of federal legislation which between them seemed to offer a viable solution. Most assuredly, neither the relevant section of Article II nor the Militia Act of 1792 were intended by their authors to enable the President of the United States to draft the state militias into federal service for the purpose of enforcing federal law. Then again, there was nothing in either of the selfsame texts explicitly prohibiting exactly that usage. What it came down to, in the end, was a question of interpretation. Unsurprisingly, the Washington Administration opted to read the law literally rather than adhere to some uncodified understanding of how and why a given power was supposed to be exercised. A looming crisis was at hand, and it doubtless seemed to matter very little to the likes of Washington and his cabinet that some of the tools at their disposal were intended for other uses.

This outcome is made especially significant when one considers the attitude broadly held by the members of the Founding Generation towards the very concept of a standing army. Central to many of the petitions issued by various individuals and organizations in the Thirteen Colonies during the 1760s and 1770s, after all, was the assertion that Britain’s ongoing deployment of professional troops in its American possessions represented an incipient threat to American liberty. As many of these remonstrances pointed out, the English Bill of Rights (1689) – one of the cornerstones of contemporary British constitutional law – stated explicitly that, “The raising or keeping [of] a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law [.]” Parliament may have approved the relevant distribution of British soldiers in America, but the legislatures of the various colonies had not. Britain’s actions thus constituted a violation of the spirit of the Bill of Rights, if not the letter. No laws had been broken, but the original purpose of the law had been flagrantly ignored. A free people should not have had to live in fear of armed men residing in their midst whose loyalty was owed to some distant government rather than to their fellow citizens. Successive British governments ignored these complaints, of course, eager as they were to both maintain law and order in America amidst their ongoing attempts to levy unpopular taxes and to continue to employ the sons, brothers, nephews, and cousins of influential families. Consequent to this obstinance, and the resulting association in the American popular imagination between standing armies and tyrannical governments, many people in the United States continued to view the concept of a peacetime standing army with acute and abiding suspicion even decades after the end of the Revolutionary War.

The effects of this attitude on American foreign and domestic policy during the immediate post-Revolutionary era could at times be rather severe. Eager to live up to the principles by which it had justified its resistance to British authority and ultimately prosecuted a war for independence – and keen, also, to cut as many costs as possible in light of the sizeable debts it had accrued in the process – the Continental Congress set about downsizing the army it had first raised in 1775 almost as soon as peace with Britain was finalized in 1783. From a high of eighty thousand men, the Continental Army was reduced in 1784 to a bare of seven hundred divided between a series of garrisons on the Western frontier and a permanent artillery contingent at West Point, New York. But while this course of action was certainly both economical and philosophically consistent – placing what little remained of the American republic’s peacetime military at a significant remove from most of the settled population – it also proved to be more than a little problematic. On the one hand, the thousands of officers and enlisted men discharged as a result of the almost complete liquidation of the American armed forces didn’t just disappear. Not only did these men now need to seek new employment, thus exerting pressure on the already fragile post-war American economy, but the need to pay the back wages which they were owed became an ongoing challenge for both the anemic Confederation government and that which was later erected under the terms of the Constitution. Some of these former soldiers became destitute, resorted to crime, or became itinerant laborers. Others – particularly the farmers among them whose livelihoods suffered as a result of the sluggish economy – fixed their resentment on the political status quo and began to organize politically. The aforementioned Shays Rebellion (1786), during which farmers in Western Massachusetts led by Continental Army veteran Daniel Shays (1747-1825) attempted to overthrow the state government in protest over heavy-handed tax policies, was one such outcome.

And on the other hand, there was the rapidly apparent fact that the United States of American did sometimes need more than just a token army. The terms of the Treaty of Paris (1783) may have legally ceded to the United States a vast swath of territory in the Great Lakes region formerly allocated by British authorities to the area’s various native inhabitants, but attempts to actually settle the same between the years 1785 and 1795 effectively proved that such a massive transfer of sovereignty was more easily said than done. The garrisons stationed in the newly-established Northwest Territory pursuant to the aforementioned plan by Congress to downsize the American military after the end of the Revolutionary War very quickly showed themselves to be completely inadequate to the task of either protecting existing American settlements or enlarging the land area under practical American jurisdiction. Settlers were killed, communities destroyed, and the official response was anemic at best. In 1790, General Josiah Harmar (1753-1813) suffered a series of defeats in engagements between his force of regular and militia troops and the various war parties of the Western Confederacy. The following year, the Governor of the Northwest Territory – the aforementioned Arthur St. Clair – led a second major expedition to an even larger defeat, with over six hundred of his one thousand-strong force killed and some two hundred and sixty wounded. This understandably sent the Washington Administration into something of a panic and prompted the passage of the aforementioned Militia Act in the spring of 1792. In the event that the newly-enlarged professional army, which Congress had also authorized, either took too long to recruit, train, and deploy or else failed in its duties once it was deployed, the President would thereafter retain the authority to call the state militias into federal service upon the certification of a duly-informed Supreme Court Justice.

Cato V, Part XX: The Same Causes, contd.

As to what the early history of the Roman Empire has got to do with George Clinton and the US Constitution – a perfectly valid line of inquiry which I’ve been given to pursue myself of late – I would ask my dear, beloved readers to please consider the following. In the text of Cato V, George Clinton made specific mention of Roman rulers Caesar, Caligula, Nero, and Domitian as archetypes of tyranny which he believed it entirely possible that the United States of America might conceivably one day embrace. The danger, he explained, lay in believing that such a turn of events was impossible. The American people, at the time that Clinton was writing in the waning months of 1787, were indeed prudent, virtuous, and jealous in politics, all of which traits he believed were worthy of praise. But these traits did not – could not – represent a permanent condition. The American people were bound to change in time, take on new priorities, and assimilate new values. It was therefore of paramount importance while the inhabitants of the American republic remained prudent, virtuous, and vigilant of their liberties, that they plan for the day when this might no longer be the case.

The aforementioned Roman rulers collectively represented what could easily transpire if this did not occur. Between the deaths of Caesar and Domitian – a period of approximately one hundred and fifty years – a great deal happened to change the way that power functioned in Rome, from where it was drawn, and upon whom it devolved. But while the Roman Senate may have cooperated in these changes at first, sanctioning the rise of both Caesar and his adoptive son Augustus, it was at length almost completely overtaken by the tide it had helped to unleash. Though it continued to believe itself the keystone of the political and institutional frameworks of Roman civilization, the Senate steadily lost influence, lost prestige, and lost authority at the behest of strong Emperors riding at the head of strong armies. It tolerated tyranny and ego-centrism for the sake of peace and stability. It willingly ceded power to rulers who were prepared to leave it in peace, and it participated in the ongoing destabilization of Roman political life when it felt its prerogatives were being excessively curtailed. Doubtless the Senators did not believe that they were shepherding the rise of autocracy as they fought to maintain some degree of relevance in Roman politics and culture, but that is what they were doing. Just so, while the generations of Americans who were set to live their entire lives under the auspices of the proposed constitution would doubtless hold fast to the notion that they were a people uniquely fitted to appreciate and protect the blessings of liberty, they might also find themselves swept along on the currents of history if they did not take special care. This, in essence, is all that Clinton was trying to say: take care, tread carefully, and do not think yourselves immune from human folly.

The obvious question which arises from this warning would seem to be, essentially, was Clinton right? Did the United States of America eventually give rise to a populist military strongman who claimed the sanction of his fellow citizens while running roughshod over the law of the land? The answer, in short, is both yes and no. The fears of people like Clinton notwithstanding, George Washington did not follow the path laid out by Julius Caesar. He was, and remained throughout his life, extremely popular with the American people, and that popularity bought him both goodwill and obedience. But never did he seek to exchange these boons for complete and unquestioned power over the whole of the American government. What he did do, however, despite remaining always an exceedingly prudent leader whose impulses tended towards restraint rather than audacity, was expand the scope of executive agency and solidify the nature of executive power. The Constitution, of course, had a fair bit to say on these matters already. Under its auspices, the President of the United States was allocated substantial authority in the realm of foreign relations – having the sole power to negotiate treaties – ongoing leadership of the American military, nominating power within the federal judiciary, and a substantive veto over domestic legislation. But while, as of 1789, said document had been reviewed and accepted by elected delegations from twelve of the thirteen states, it would remain impossible to say for certain what the feelings of the American people really were about the concept of strong, autonomous executive authority until someone was elected to the office and put these power to use.

Once in office, Washington did seem to justify the trust vested in him by the majority of his fellow Americans by the generally cautious and thoughtful manner in which he conducted himself. But while his administration has since been measured by subsequent generations as having been an overwhelming success, the first President of the United States was arguably guilty of subtly enlarging the window of what was permitted the national executive beyond what many of his countrymen might have initially felt was wise. In the realm of foreign policy, for example – an area in which the terms of the Constitution tended to favor the office of President – Washington made it abundantly clear that his ability to negotiate with foreign powers on behalf of the United States was limited only by the discretion of the Senate to approve or reject the resulting agreements. An examination of the Constitution itself would seem to make this a matter beyond debate; Article II, Section 2 clearly stated of the president that, “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [.]” In practice, however, when Washington sought to invoke this clause for the first time in American history in the middle 1790s, a particularly acrimonious public debate was among the near-terms results. The outcome Washington was seeking was a formal settlement between the United States of America and the Kingdom of Great Britain which would serve to resolve a number of issues either left outstanding from the end of the Revolutionary War or stemming from the ongoing conflict between Britain and Revolutionary France. Among these, the British were still occupying a number of forts in the Great Lakes region which they had previously agreed to turn over to American control, the British Navy had seized a number of American merchant vessels bound for French ports, and British authorities in Canada were actively assisting indigenous attempts to violently resist the American settlement of what is now Michigan and Ohio.

Seeking a resolution of these grievances, and a general harmonization of Anglo-American relations that would maintain American neutrality amidst the armed conflict then raging across Europe, President Washington invoked the aforementioned clause of Article II, Section 2 and dispatched Chief Justice John Jay to Great Britain as his envoy. The result, in more ways than one, was not what he expected. For one thing, the treaty which Jay ultimately signed and submitted in June of 1795 could not have fairly been described as overwhelmingly beneficial to the foreign or domestic interests of the United States of America. It wasn’t disastrous, to be sure. Britain agreed to finally vacate the relevant forts in the Old Northwest, to submit to arbitration on the matter of monetary damages incurred by American merchants, and to grant the United States most-favored-nation trading status and permit limited access to its colonial possessions in the West Indies. But in exchange for these concessions – which were, in truth, quite substantial – Jay was forced to agree to a number of British demands in turn. The United States agreed to repay outstanding pre-1775 debts, to cooperate with Britain’s ant-French commercial policies, and to forego any resolution of either the impressment of American sailors into the British Navy or the purported confiscation of American-owned slaves at the end of the Revolutionary War. Washington was understandably disappointed in these latter provisions. He had no wish for his country to become in any way entangled in Britain’s foreign policy schemes, and every intention of seeing justice done for his southern constituents who demanded financial compensation for their supposedly pilfered property. All the same, he came to support the treaty for what he felt was its single-most desirable condition: it would keep the United States from going to war with Great Britain. Having seen the cost of armed conflict firsthand, it would seem little wonder that Washington came to this decision.

      

            Not all of Washington’s countrymen shared his priorities, however. Upon being submitted to the Senate for ratification or rejection in June, 1795, the “Jay Treaty,” as it had become known, sparked a vicious debate between supporters and detractors of the Washington Administration over both the “proper” direction of American foreign policy and the nature and scope of the president’s treaty-making authority. Of the former, the faction which had emerged from the Anti-Federalists of the ratification debate and coalesced around the intellectual leadership of former Secretary of State Thomas Jefferson and Congressmen James Madison took strong issue with any policy which appeared to offer aid and comfort to British priorities and interests. Far from aiding Great Britain in pursuing the commercial isolation of the nascent French Republic, these “Democratic-Republicans” asserted that the United States of America should have been doing everything in its power to assist the beleaguered French as they struggled to uphold the principles of liberty and justice against the combined might of the reactionary powers of Europe. To their thinking, the French Revolution was little more than an extension of the American Revolution, and it accordingly behooved the American Republic to come to the assistance of its newfound French counterpart. But while this was largely a matter of policy – the so-called “Federalists” to which Washington most often found himself allied being pro-British as a rule – the other complaint ultimately leveled by the Democratic Republicans was somewhat more fundamental.

            Though the Senate debate surrounding the proposed ratification of the Jay Treaty did ultimately develop into a lengthy and involved affair – lasting from the submission of the document in June 1795 until its final ratification in August of that same year – the most substantial disagreement spurred as a result did not take shape until after the agreement had been signed into law by President Washington. The Senate, by a strict party-line vote of twenty to ten, had agreed to ratify the agreement John Jay had brought back from Great Britain, thus elevating the text thereof – by the terms of Article IV of the US Constitution – to the status of, “Supreme Law of the Land.” But it remained for the House of Representatives to allocate the funding necessary to enforce its various terms. The Constitution, after all, clearly stated – by the terms of Article I, Section 7 – that, “All Bills for raising Revenue shall originate in the House of Representatives,” while granting the Senate the concomitant right to, “Propose or concur with amendments as on other Bills.” And the terms of the Jay Treaty did seem to necessitate a substantial distribution of monetary assets. Depending on the outcome of the relevant arbitration processes, funds would need to be disbursed, both to British creditors who had gone unpaid since the beginning of the Revolutionary War and to Loyalists whose properties had been seized during that same conflict. Commissions assigned to settle a series of lingering border disputes would also need to be able to pay for surveying efforts, and a whole customs regime would need to be erected so as to police the expected increase in cross-border commerce and uphold the pertinent terms of the agreement.

As all of these allotments would necessarily fall to the House to fulfill, Congressman Madison – who had, but scant years earlier, been one of the principal architects of the Constitution –accordingly concluded that the House should have been given a chance to review the treaty in question on the same terms as the Senate. The Federalists – whose mercantilist priorities were well-served by the Jay Treaty – naturally disagreed with this assertion of legislative authority. The Democratic Republicans held a majority in the House of Representatives by a margin of fifty-eight to forty-six, lending them a distinct advantage if it became their collective intention to defeat the implementation of the Jay Treaty in spite of it having already been signed into law. The resulting debate – perhaps the first in American history to pivot upon the concept of constitutional originalism – presented something of an impasse. The Constitution did state, unambiguously, that the President possessed the sole power to negotiate treaties, subject only to the advice and consent of two-thirds of the Senate. And it also made it clear that, once a treaty so devised received the approval of the Senate, such treaties would become the undisputed law of the land, “Any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” But then there was the aforementioned clause in Article I, Section 7. So, then, what was supposed to happen if a treaty was negotiated by the President and approved by the Senate which required the House to allocate public funds? Was the House just supposed to comply, putting aside its otherwise exclusive discretion in matters of public finance? Or did the relevant text of Article I, Section 7 constitute an exception to the treaty powers of the President and the Senate?

In truth, there was no definite, unassailable answer. Madison may have claimed for himself special authority to interpret the significance of such contradictions in light of his outsized role in drafting the original text, but that could hardly have lent him an authoritative voice. Washington had been present during the Philadelphia Convention as well, and so had his long-time adjutant Alexander Hamilton. They claimed that the House had no place reviewing a treaty that the Senate had already voted to approve and did so with as much vehemence and as much authority as Madison. The result, ultimately, was another victory for President Washington. There may not have been a right answer to the question which the terms to the Jay Treaty had brought to bear, but there was at least a convincing answer as to how the relevant text of the Constitution ought to have been read. As Washington and the Federalists successfully claimed, there could be no exceptions either to the treaty making power of the President and the Senate or to the operation of the so-called “Supremacy Clause.” The reason for this was that the text of the Supremacy Clause itself contained the exception to the otherwise exclusive financial powers of the House. “All Treaties made,” it stated, “Or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Since, “Any Thing in the Constitution,” included the cited clause of Article I, Section 7, it followed that the terms of any treaty submitted to and approved by the Senate would necessarily supersede any and all claims made against it by the House.

While this conclusion came in response to a very specific set of circumstances – i.e. the conflicting foreign policy priorities of the Democratic Republicans and the Federalists and their respective efforts to pursue or frustrate the same – its significance to the nature of executive power under the US Constitution nevertheless had very substantial and far-reaching consequences. Regardless of what the text of the Constitution actually said, Washington was the first person to bring home to the American people in a clear and unambiguous way just what it was a president could or couldn’t do. And in this particular case, by giving life to the provisions embedded in Article II and Article IV, he effectively expanded both the practical and the imagined scope of presidential power. Now, thanks to the resolve of Washington and the Federalists, there was legal precedent for the superseding authority of the Executive Branch of the United States Government within the realm of foreign policy. Even if a majority in the House of Representatives disagreed with the same, the members thereof would have no choice but to allocate the funds necessary to see the terms of a given treaty fulfilled. Seeing this to be the case, the American people – like their elected representatives in the lower house of Congress – would likewise be forced to readjust their understanding of the nature of executive power.

While the plain text of the Constitution – there for any and all to peruse at their leisure – made it abundantly clear that the President was intended to be both independent and powerful, the conclusion of the Jay Treaty debate doubtless made it much clearer in practice precisely how there traits were likely to manifest. Whereas a straightforward reading of the federal charter established a clear division of authority between Congress and the office of chief executive – allocating to each a set of powers and responsibilities intended to promote distinct and independent activity – the formal implementation of the terms of the Jay Treaty implied something quite different. Pursuant to the cited treaty-making authority described in Article II, and the supremacy of federally negotiated treaties over all other laws or regulations described in Article IV, President Washington had effectively invoked the legal right to order the House of Representatives to pass legislation against its own will. The Senate, to be sure, was required to give its consent to such an order by approving of the relevant treaty by a majority of two-thirds. But the Senate, as originally described in the text of the Constitution, wasn’t a particularly representative body. Rather than face election at the hands of the general public in their respective states – an arrangement which would only be adopted upon the ratification of the 17^th Amendment in 1913 – Senators were instead appointed by the legislatures of the states. The House was intended to be the more representative body, both because its members were directly elected and because they served for only two years at a time. But while this proximity to the American people was deemed necessary in most cases for the lower house of Congress to pass such laws as might be considered both needful and legitimate, this same logic could be made to cut both ways.

The President, after all, was also popularly elected. Indeed, he was the only public servant in the entirety of the United States who could claim to represent the undivided American people. Did this necessarily lend the office of President an added degree of authority when pursuing policies which the occupant thereof believed would benefit the American public as a whole? Was it accordingly permissible for the President, in cooperation with the Senate, to force the House to cooperate in pursuit of said policies? The Democratic Republicans, understandably, answered in the negative. Regardless of the responsibilities granted to the office of President in the realm of foreign policy, they asserted, the authority of the House of Representatives in matters of national finance was – by design – fundamentally unassailable. If successful, this argument probably would have served to sustain the conception of government under the terms of the Constitution which its less ardent supporters had been willing to accept in exchange for their affirmative votes on ratification. The structure and responsibilities of the executive branch may still have been cause for anxiety, but at least the overall framework of the thing preserved the autonomy of the national legislature. That is to say, while there would be a strong President, Congress would be its equal. As it stood in practice, however, this ceased to be the case – if it ever was the case – rather quickly. Washington and his Federalist allies successfully asserted the contrary – that the authority of the President within the realm of foreign policy was functionally absolute – as early as 1795. Having witnessed this assertion of executive authority, the American people would very likely be left to wonder what else the office of President might claim for itself. And at the very least, they would be forced to reframe their collective perception of the authority of the American republic’s chief executive.