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Original intent. The term pops up frequently in debates over how to interpret the U.S. Constitution. At its core, the concept of original intent holds that constitutional interpretation should be guided (or bound) by what the framers envisioned when they wrote the document back in 1787. But what happens to original intent when the framers themselves disagreed on how to interpret their handiwork? It’s not an academic question. Just look at the so-called Pacificus-Helvidius debate, which began 227 years ago today. The debate pitted Alexander Hamilton (writing under the pen name “Pacificus”) and James Madison (writing under the pen name “Helvidius.”) Even though the two men had had more influence than anyone else on the writing and ratification of the Constitution, they painted decidedly different views of the relative powers of Congress and the president in foreign policy. Their disagreement has echoes to this day.
The debate originated in President George Washington’s issuance of the Proclamation of Neutrality on April 22, 1793, declaring that the United States would not take sides in the war that that had just erupted between France and a range of European powers, including Britain. The proclamation excited passions at home, all the more so when by happenstance a representative of the revolutionary French government, Edmond-Charles Genêt, traveled from Charleston, South Carolina, to Philadelphia whipping up pro-French sentiment. Then Vice President John Adams would remember it later, perhaps with a touch of hyperbole, as a time “when ten thousand people in the streets of Philadelphia, day after day, threatened to drag Washington out of his house and effect a revolution in the government or compel it to declare war in favor of the French Revolution and against England.”
As Adams’s recollection suggests, much of the opposition to Washington’s decision was on the substance. Many Americans favored siding with France. The two countries had a treaty of alliance, French support had been critical to winning the War of Independence, and neutrality would help the hated British. Indeed, in an effort to forestall these criticisms and in keeping with the recommendation of Washington’s Francophile secretary of state, Thomas Jefferson, the proclamation did not use the word “neutrality” but instead declared America’s “friendly and impartial” attitude toward all the belligerents.
But for many critics the Proclamation of Neutrality also raised an important constitutional question: under what authority did Washington act? The Constitution said nothing about neutrality. It did, however, lodge the power to declare war with Congress. By opting for neutrality even if he hadn’t used the term, hadn’t Washington infringed on Congress’s constitutional authority? Doubts about the propriety of Washington’s action extended to members of his own cabinet, with Jefferson writing that “my objections to the competence of the Executive to declare neutrality (that being understood to respect the future) were supposed to be got over by avoiding the use of that term.”
The first of Hamilton’s seven essays defending Washington appeared in a Philadelphia newspaper, The Gazette of the United States, on June 29, 1793. The seventh and final one appeared on July 27. The essays clearly rankled Jefferson. He wrote to Madison several times urging him to respond to Hamilton’s “heresies”:
Nobody answers him, & his doctrines will therefore be taken for confessed. For God’s sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to pieces in the face of the public. There is nobody else who can & will enter the lists with him.
Madison initially tried dodging his friend’s request. He ultimately relented, though he told Jefferson that “I have forced myself into the task of a reply. I can truly say I find it the most grating one I ever experienced.” Madison’s five essays were published in The Gazette of the United States between August 24 and September 18.
Both sets of essays addressed the substantive criticisms of the Proclamation of Neutrality. But the enduring legacy of the exchange was the differing constitutional visions the two framers sketched. Hamilton argued for a broad reading of presidential power, insisting that “the general doctrine of our Constitution…is… that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.” In contrast, the role of the Senate in treaty-making and Congress in declaring war were “exceptions out of the general ‘executive power’ vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.” Hamilton further argued that while the “legislature have the right to declare war, it is on the other, the duty of the executive to preserve peace, till the declaration is made; and in fulfilling this duty, it must necessarily possess a right of judging what is the nature of the obligations which the treaties of the country impose on the government.”
This vision of a powerful president armed with implied constitutional powers differed markedly from the vision of presidential authority Hamilton had laid out in the Federalist Papers. There he had painted a presidency with circumscribed powers. The president’s position as commander in chief “would amount to nothing more than the supreme command and direction of the military and naval forces,” and his authority to receive foreign ambassadors would be “more a matter of dignity than of authority.” And perhaps most notably, he argued that “the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”
Madison responded that Hamilton had it backward—the balance of power between the executive and the legislature tilted toward Congress. The president’s foreign policy powers were restricted to those specifically mentioned in the Constitution and even those did not amount to much. For instance, Madison dismissed Hamilton’s contention that the power to receive foreign ambassadors imbued the president with broader authorities by observing “that little, if anything, more was intended by that clause, than to provide for a particular mode of communication.” For Madison, the president was essentially an agent who acted on behalf of Congress and who should not act in ways that would circumscribe its freedom of action. This vision of the presidency was more pinched than the one Madison had sketched five years earlier at the Virginia ratifying convention, showing that Hamilton was not the only framer whose constitutional views shifted with time and circumstance. (Madison’s flexibility on constitutional interpretation showed up again a few years later during the debate over the Jay Treaty.)
Madison probably had the better of the argument in terms of the system the framers who met in Philadelphia in the summer of 1787 thought they were creating. But Hamilton had the better of the argument of how the system would actually unfold. Over the next two centuries, power—both constitutional and practical—shifted toward the president. It did so in good part because of a dynamic that Hamilton had recognized in the Federalist Papers, namely, that “decision, activity, secrecy, and dispatch will generally characterise the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.” The shift would be helped along by the frequent willingness of members of Congress to put aside qualms about the president’s authority to act when he delivered policy outcomes they wanted.
In their jousting, Hamilton and Madison both pointed to constitutional provisions that supported their position. In doing so, they highlighted how the framers, perhaps unwittingly, had created a constitutional structure of separated institutions with overlapping powers. These overlapping, or concurrent, authorities, in turn have meant, as the legal scholar Edwin Corwin famously put it, that the Constitution extends “an invitation to struggle for the privilege of directing American foreign policy.” That struggle generate a productive tension, with the two branches checking each other’s worst tendencies—or bring out each other’s best qualities. But it also raised the possibility that one branch trump the other. As the historian Arthur Schlesinger wrote nearly a half-century ago in The Imperial Presidency, “if the President were to claim all the implications of his control of diplomacy, he could, by creating an antecedent state of things, swallow up the congressional power to authorize hostilities. If Congress were to claim all the implications of its power to authorize hostilities, it could swallow up much of the presidential power to conduct diplomacy.” I will leave it to you to decide which is the greater risk today.
Noah Mulligan and Anna Shortridge assisted in the preparation of this post.