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.