Hostname: page-component-8448b6f56d-wq2xx Total loading time: 0 Render date: 2024-04-24T20:35:41.769Z Has data issue: false hasContentIssue false
  • English
  • Français

Interpreting Article II, Section 2: George Washington and the President's Powers

Published online by Cambridge University Press:  17 June 2019

Lindsay M. Chervinsky
Get access Rights & Permissions [Opens in a new window]

Abstract

This article explores Washington's annotated copy of the Constitution and the Acts of Congress (hereafter called the Acts of Congress to remain consist with the label Washington had placed on the front cover) to reveal new insights into his constitutional interpretation. Held in a private collection until 2012, this article is the first to examine Washington's notations in the Acts of Congress for their value as statements about political authority. Washington's comments in the margins of his volume suggest an evolving view of presidential power and constitutional limitations on the executive branch as early as January 1790. His margin notes on the Acts of Congress served as blueprint for his defense of presidential authority and the expansion of the executive branch in the 1790s. Finally, the annotated Acts of Congress inserts Washington's ideas about the presidency into the debate surrounding originalism by revealing how his analysis of the language evolved to meet the demands of governing, leading him to reject the delegates' intent for Article II, Section 2 of the Constitution.

Type
Original Article
Information
Law and History Review , Volume 37 , Issue 3 , August 2019 , pp. 725 - 741
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

She received her PhD from the University of California, Davis and completed a postdoctoral fellowship at the Center for Presidential History at Southern Methodist University. Her book, The Cabinet: George Washington and the Creation of an American Institution, will be published by Harvard University Press in the spring of 2020. She thanks Douglas Bradburn and the staff at the Fred W. Smith National Library for the Study of George Washington for introducing her to Washington's Acts of Congress and sharing the photographs used in this article. She also thanks Alan Taylor for reviewing an earlier version of this article and Gautham Rao for the opportunity to participate in this special volume.

References

1. For examples of scholarship on eighteenth-century political writings by the founders, see Rakove, Jack, A Politician Thinking: The Creative Mind of James Madison (Norman, OK: University of Oklahoma Press, 2017)Google Scholar; Sheehan, Colleen A., James Madison and the Spirit of Republican Self-Government (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar; Onuf, Peter S., Jefferson and the Virginians: Democracy, Constitutions, and Empire (Baton Rouge: Louisiana State University Press, 2018)Google Scholar; Gordon-Reed, Annette and Onuf, Peter S., ‘Most Blessed of the Patriarchs’: Thomas Jefferson and the Empire of Imagination (New York: W.W. Norton & Company, Inc., 2016)Google Scholar; and Brown, Kate Elizabeth, Alexander Hamilton and the Development of American Law (Lawrence, KS: The University Press of Kansas, 2017)CrossRefGoogle Scholar.

2. For examples, see Ketcham, Ralph, Presidents Above Party: The First American Presidency, 1789–1829 (Chapel Hill: The University of North Carolina Press, 1984)Google Scholar; Larson, Edward J., The Return of George Washington: Uniting the States, 1783–1789 (New York: HarperCollins Publishers, 2014)Google Scholar; Larson, Edward J., George Washington, Nationalist (Charlottesville: University of Virginia Press, 2016)Google Scholar; Ferling, John, The Ascent of George Washington: The Hidden Political Genius of an American Icon (New York: Bloomsbury Press, 2009)Google Scholar; Higginbotham, Don, ed., George Washington Reconsidered (Charlottesville: University of Virginia Press, 2001)Google Scholar; and Bartoloni-Tuazon, Kathleen, For Fear of an Elective King: George Washington and the Presidential Title Controversy of 1789 (Ithaca, NY: Cornell University Press, 2014)CrossRefGoogle Scholar. See Washington's annual addresses to Congress, his letter to the states, and his Farewell Address: “Address to the United States Senate and House of Representatives, 6 November 1792,” in The Papers of George Washington, Presidential Series, 11:342–51, ed. W.W. Abbot et al. (Charlottesville: University of Virginia Press, 1987—present). “George Washington to the States, 8 June 1783,” Founders Online, National Archives, Early Access Document, http://founders.archives.gov/documents/Washington/99-01-02-11404 (accessed January 10, 2019); “Farewell Address, 19 September 1796,” Founders Online, National Archives, Early Access Document, http://founders.archives.gov/documents/Washington/99-01-02-00963 (accessed January 10, 2019). For examples of scholarship on these key moments, see Ray, John, “George Washington's Pre-Presidential Statesmanship,” Presidential Studies Quarterly 27 (1997): 207–20Google Scholar; Spalding, Matthew, “George Washington's Farewell Address,” Current 390 (1997): 35–39Google Scholar; and Smith, Richard Norton, Patriarch: George Washington and the New American Nation (New York: Houghton Mifflin, 1997)Google Scholar.

3. Larson, George Washington: Nationalist; Larson, The Return of George Washington; Harrison, Adrienne M., A Powerful Mind: The Self-Education of George Washington (Lincoln, NE: University of Nebraska Press, 2015)CrossRefGoogle Scholar; and Hayes, Kevin J., George Washington: A Life in Books (Oxford: Oxford University Press, 1997)Google Scholar.

4. Gienapp, Jonathan, The Second Constitution: Fixing the American Constitution in the Founding Era (Cambridge, MA: Harvard University Press, 2018)Google Scholar. Jonathan Gienapp, “Constitutional Originalism and History,” Process Blog, March 20, 2017, http://www.processhistory.org/originalism-history/ (accessed January 10, 2019).

5. See Gienapp, The Second Constitution; Rakove, A Politician Thinking; Bordewich, Fergus, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (New York: Simon & Schuster, 2017)Google Scholar; Sheehan, James Madison and the Spirit of Republican Self-Government; and Onuf, Jefferson and the Virginians.

6. Phelps, Glenn A., George Washington and American Constitutionalism (Lawrence, KS: University Press of Kansas, 1993)Google Scholar.

7. Rao, Gautham, National Duties: Custom Houses and the Making of the American State (Chicago: The University of Chicago Press, 2016)CrossRefGoogle Scholar; Gienapp, The Second Creation; Bordewich, The First Congress; and Hogeland, William, Founding Finance: How Debt, Speculation, Foreclosures, Protests, and Crackdowns Made Us a Nation (Austin: University of Texas Press, 2012)Google Scholar.

8. Bartoloni-Tuazon, For Fear of an Elective King.

9. For more on Washington's creation of the cabinet and its support of the president and role in several key moments during Washington's presidency, see Chervinsky, Lindsay M., The President's Cabinet: George Washington and the Creation of an American Institution (Cambridge, MA: Harvard University Press, 2020)Google Scholar.

10. For an overview on scholarship on originalism, see Gienapp, “Constitutional Originalism and History”; and Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996)Google Scholar. For recent scholarship on originalism, see “Symposium: Original Ideas on Originalism,” Northwestern University Law Review 103 (2009): 491–1006Google Scholar; “Symposium: The New Originalism in Constitutional Law,” Fordham Law Review 82 (2013): 371–826Google Scholar; and O'Neill, Johnathan, Originalism in American Law and Politics: A Constitutional History (Baltimore, MD: The Johns Hopkins University Press, 2005)Google Scholar.

11. Brumwell, Stephen, George Washington: Gentleman Warrior (New York: Quercus, 2012)Google Scholar; Lengel, Edward G., General George Washington: A Military Life (New York: Random House, 2005)Google Scholar; Burnett, Edmund Cody, The Continental Congress (New York: W.W. Norton & Company, Inc., 1941)Google Scholar; and Van Cleve, George William, We Have Not a Government: The Articles of Confederation and the Road to the Constitution (Chicago: University of Chicago Press, 2017)CrossRefGoogle ScholarPubMed.

12. “George Washington to Benjamin Harrison, Sr., 21 March 1781,” Founders Online, National Archives, http://founders.archives.gov/documents/Washington/99-01-02-05144 (accessed January 10, 2019).

13. Spalding, “George Washington's Farewell Address,” 66.

14. “George Washington to The States, 8 June 1783,” Founders Online, National Archives, http://founders.archives.gov/documents/Washington/9901-02-11404 (accessed January 10, 2019).

15. George Washington to John Jay, August 15, 1786, The Papers of George Washington, Confederation Series, 4:212–13.

16. Middlekauff, Robert, The Glorious Cause: The American Revolution, 1763–1789 (Oxford: Oxford University Press, 2005), 621Google Scholar; Van Cleve, We Have Not A Government, 133–60; Cutterham, Tom, Gentlemen Revolutionaries (Princeton, NJ: Princeton University Press, 2017)Google Scholar; Ferling, The Ascent of George Washington; Longmore, Paul K., The Invention of George Washington (Charlottesville: University Press of Virginia, 1999)Google Scholar; Larson, The Return of George Washington, 1–100.

17. “May 1787,” in The Diaries of George Washington, ed. Jackson, Donald and Twohig, Dorothy (Charlottesville: University Press of Virginia, 1979), 5:147–64Google Scholar.

18. Ibid.

19. Ibid.

20. Madison, James, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America, ed. Hunt, Gaillard and Scott, James Brown (New York: Oxford University Press, 1920), 579–80Google Scholar; Collier, Christopher and Collier, James Lincoln, Decision in Philadelphia: The Constitutional Convention of 1787 (New York: Ballantine Books Paperback Edition, 2007), 293–311Google Scholar; Stewart, David O., The Summer of 1787: The Men Who Invented the Constitution (New York: Simon & Schuster, 2007), 151–62, 207–17Google Scholar; and Larson, The Return of George Washington, 101–200.

21. “May 1787,” in The Diaries of George Washington, 5:147–64.

22. Ibid.; Larson, The Return of George Washington, 101–200; and Collier, Decision in Philadelphia, 293–311.

23. Mary Stockwell, “Ratification of the Constitution,” in Digital Encyclopedia, Mt. Vernon, http://www.mountvernon.org/digital-encyclopedia/article/ratification-of-the-constitution/ (accessed January 10, 2019).

24. George Washington to David Stuart, October 17, 1787, The Papers of George Washington, Confederation Series, 5:379–80.

25. George Washington to David Stuart, November 5, 1787, The Papers of George Washington, Confederation Series, 5:411–13.

26. Humphreys, David, Life of General Washington, ed. Zagarri, Rosemarie (Athens, GA: The University of Georgia Press, 2006), 44Google Scholar.

27. George Washington, “March 1, 1788,” in The Diaries of George Washington, 5:281.

28. U.S. Const., art. II, § 2.

29. “The Virginia Resolutions, 29 May 1787, Charles Pinckney's Plan, 29 May 1787,” in The Documentary History of the Ratification of the Constitution (hereafter DHRC), ed. Jensen, Merrill (Madison: State Historical Society of Wisconsin, 1976), 1:243–47Google Scholar; Bilder, Mary Sarah, Madison's Hand: Revising the Constitutional Convention (Cambridge, MA: Harvard University Press, 2015), 59, 71–74, 84, 119CrossRefGoogle Scholar; Madison, James, Notes of Debates in the Federal Convention of 1787 and their relation to a more perfect society of nations, ed. Scott, James Brown (New York: Oxford University Press, 1918), 487–488, 596–601Google Scholar. No notes exist to document the proceedings of the Committee of Postponed Matters. On September 7, Gouverneur Morris rejected an amendment to include a council and cites the committee's deliberations on the issue. Morris served on the Committee of Postponed Matters, but not on the Committee of Detail, so he must have been referencing the Committee of Postponed Matters’ meetings that took place from August 6 to August 31. Larson, The Return of George Washington, 161–67.

30. Collier and Collier, Decision in Philadelphia, 293–311; and Hoxie, R. Gordon, “The Cabinet in the American Presidency,” Presidential Studies Quarterly 14:2 (Spring 1984): 212Google Scholar.

31. U.S. Const. art. 2. sec. 2. cl. 1–2.

32. [James Iredell], “Marcus II,” February 20–March 19, 1780, Norfolk and Portsmouth Journal in The Debate on the Constitution, ed. Bailyn, Bernard (New York: Library of America, 1993), 1:371–78Google Scholar.

33. “Americanus II,” December 19, 1787, Virginia Independent Chronicle in DHRC, 8:244–46; Maier, Pauline, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010), 45–48, 57, 118–19, 235, 280–81, 286, 308, 371, 392, 416, 417Google Scholar; Madison, Notes of Debates, 596–601; Bilder, Madison's Hand, 226; Kaminski, John P., Saladino, Gaspare J., Leffler, Richard, Schoenleber, Charles H., and Hogan, Margaret A., eds., The Documentary History of the Ratification of the Constitution Digital Edition (Charlottesville: University of Virginia Press, 2009)Google Scholar, http://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0003-0003 (August 11, 2017).

34. “George Washington to the United States Senate, 25 May 1789,” in The Papers of George Washington, Presidential Series, 2:391–92.

35. Bickford, Charlene Bangs, “‘Public Attention Is Very Much Fixed on the Proceedings of the New Congress’: The First Federal Congress Organizes Itself,” in Inventing Congress: Origins and Establishment of the First Federal Congress, ed. Bowling, Kenneth R. and Kennon, Donald R. (Athens, OH: Ohio University Press, 1999), 153–54Google Scholar.

36. “George Washington to the United States Senate, 21 August 1789,” in The Papers of George Washington, Presidential Series, 3:515.

37. “George Washington to the United States Senate, 22 August 1789,” in The Papers of George Washington, Presidential Series, 3:512–27.

38. Maclay, William, The Diary of William Maclay, ed. Bowling, Kenneth R. and Veit, Helen E. (Baltimore, MD: Johns Hopkins University Press, 1988), 128–30Google Scholar.

39. Bordewich, The First Congress, 133–35.

40. “George Washington to John Jay, 9 December 1789,” in The Papers of George Washington, Presidential Series, 4:383.

41. George Washington, “October 1789,” in The Diaries of George Washington, 5:448–88.

42. Acts Passed at a Congress of the United States of America (New York: Francis Childs and John Swaine, 1789), 6–9Google Scholar. The Fred W. Smith National Library for the Study of George Washington, Mount Vernon Ladies' Association.

43. Washington had delivered an address after his inauguration on April 30, 1789, but the January 8, 1790 address was the first official State of the Union address.

44. Historians speculate that Martha Washington burned her letters to George and his letters to her out of respect for his wishes.

45. George Washington's Last Will and Testament, July 9, 1799, George Washington's Mount Vernon, The Mount Vernon Ladies' Association, https://www.mountvernon.org/education/primary-sources-2/article/george-washingtons-last-will-and-testament-july-9-1799/ (accessed January 10, 2019).

46. For examples of his annual addresses, see: George Washington to the United States Senate and House of Representatives, October 25, 1791; and George Washington, “Address to the United States Senate and House of Representatives, 6 November 1792,” in The Papers of George Washington, Presidential Series, 9:110–16; 11:342–50.

47. U.S. Const., art. II, § 2.

48. Iredell, “Marcus II,” 1:371–78; and Prakash, Saikrishna Bangalore. Imperial From the Beginning: The Constitution of the Original Executive (New Haven, CT: Yale University Press, 2015), 39–42CrossRefGoogle Scholar.

49. Iredell, “Marcus II,” 371–78; and Alexander Hamilton, The Federalist Papers: No. 70, The Avalon Project, Yale Law School, http://avalon.law.yale.edu/18th_century/fed70.asp (accessed January 10, 2019); and Prakash, Imperial From the Beginning, 39–42.