Version One
What role did Hamilton see for Congress regarding war powers? Why did Hamilton consider the phrase “the executive power shall be vested in a president of the United States” to be such an important passage in the Constitution? Does Madison’s argument exclude the possibility that the president can respond to an attack on the United States or its armed forces without waiting for Congress to act? Does Hamilton’s argument open the door to the abuse of presidential warmaking power? Did the fact that George Washington accepted Hamilton’s argument open the door to presidential primacy over foreign affairs? Between Pacificus and Helvidius, which arguments do you find the most compelling?
From your readings of the various war messages in this collection, did Madison’s interpretation or Hamilton’s interpretation of war powers prevail over the long run? In your opinion, did the United States have an obligation to assist an ally who helped secure American independence? (See Address to a Joint Session of Congress on Relations with France, the XYZ Affair, First Annual Message to Congress, The Embargo Act, War Message, Special Message to Congress on Mexican Relations, Message to Congress Requesting a Declaration of War with Spain.)
No related resources
Introduction
No matter how much Americans might have wished otherwise, the United States was repeatedly drawn into the struggles of the Old World throughout the first decades of its existence. In 1792 a Prussian army supported by Great Britain, Russia, and Austria attempted to march on Paris to suppress the revolutionary “contagion” from spreading throughout Europe. The survival of the revolutionary regime in France was at risk, and the pressure for the United States to take a stance in favor of the nation that had helped it win its own revolution, and with whom it had a mutual defense treaty dating back to 1778, was intense.
Following the remarkable French victory over Prussian forces at Valmy in September 1792, the French National Convention issued a manifesto calling for a worldwide republican revolution and dispatched diplomat Edmond Charles Genet to the United States to secure support for the revolutionary regime, inspire attacks on Spanish and British possessions in North America, and punish colonial powers by denying them access to American and French harbors. Genet was also charged with proposing a pact with the United States to promote the extension of the “Empire of Liberty” in the Americas and beyond. Genet spent his time in the United States urging the creation of pro-French Democratic-Republican societies that were viewed with great suspicion by Hamilton and his Federalist allies.
On April 22, 1793, President Washington issued a Neutrality Proclamation stating that the United States “should with sincerity and good faith adopt and pursue a conduct friendly and impartial to the belligerent powers.” The proclamation went on to prohibit Americans from “committing, aiding, or abetting hostilities against any of the said powers.” Washington’s proclamation angered many Americans, including Secretary of State Thomas Jefferson and Congressman James Madison of Virginia, who opposed it both as bad policy and as a breach of the Constitution.
The Neutrality Proclamation’s opponents argued that the United States had a moral obligation to align itself with France, if not militarily then at least to “tilt” its diplomatic and trade initiatives in a pro-French direction. Alexander Hamilton argued that any obligation the United States had to France ended with the overthrow of the regime that had signed the original treaty in 1778. Hamilton privately expressed disdain for those who allowed their passions, or as he crudely put it “a womanish attachment to France and a womanish resentment against Great Britain,” to lose sight of the fact that aligning with France was not in America’s national interest. Both Jefferson and Hamilton favored neutrality, although Jefferson favored a different sort. Jefferson contended that the treaty with France should be honored despite the regime change and that a declaration of neutrality should be withheld and used as a bargaining tool with the contending powers.
The administration’s critics also argued that the president had usurped Congress’ power by issuing the proclamation: since Congress possessed the power to declare war, the power to declare neutrality rested with the legislature. Frustrated with Washington’s stance and with Hamilton’s newspaper editorials in favor of the proclamation, Jefferson wrote to Madison on July 7, 1793, “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.”
The ensuing newspaper debates between Hamilton, writing as “Pacificus,” and Madison, writing as “Helvidius,” continue to inform the arguments of those advocating for a foreign policy based on realism versus one informed by the nation’s ideals, and serve as a touchstone for advocates promoting either presidential primacy or legislative supremacy in matters of war and peace.
Hamilton’s concern over the propensity of Americans to develop emotional ties with foreign regimes reemerged as an issue in the twentieth century. During the 1930s and 1940s many Americans, including Vice President Henry Wallace (1888–1965), became captivated with the Soviet Union, in part due to the faulty perception that it was an egalitarian utopia. At the same time other members of the New Deal coalition found much to admire in Mussolini’s Italy with its emphasis on centralized planning. It was not unusual in the 1930s to find prominent conservative Americans offering praise for Hitler’s Germany because of its unabashed nationalism and opposition to communism. During the Cold War many Americans on the political left developed a “passionate attachment” toward North Vietnam, Castro’s Cuba, or Nicaragua under the Sandinistas
—Stephen F. Knott
“Pacificus No. 1, [29 June 1793],” Founders Online, National Archives, https://founders.archives.gov/documents/Hamilton/01-15-02-0038; “Helvidius” Number 1, [24 August] 1793,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-15-02-0056; “Helvidius” Number 4, [14 September] 1793,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-15-02-0070.
Pacificus No. 1, June 29, 1793
… It will not be disputed … that a proclamation of neutrality, where a nation is at liberty to keep out of a war in which other nations are engaged and means so to do, is a usual and a proper measure. Its main object and effect are to prevent the nation being immediately responsible for acts done by its citizens, without the privity1 or connivance of the government, in contravention of the principles of neutrality.2
An object this [is] of the greatest importance to a country whose true interest lies in the preservation of peace.
The inquiry then is what department of the government of the United States is the proper one to make a declaration of neutrality in the cases in which the engagements of the nation permit and its interests require such a declaration.
A correct and well-informed mind will discern at once that it can belong neither to the legislative nor judicial department and, of course, must belong to the executive.
The legislative department is not the organ of intercourse between the United States and foreign nations. It is charged neither with making nor interpreting treaties. It is therefore not naturally that organ of the government which is to pronounce the existing condition of the nation, with regard to foreign powers, or to admonish the citizens of their obligations and duties as founded upon that condition of things. Still less is it charged with enforcing the execution and observance of these obligations and those duties.
It is equally obvious that the act in question is foreign to the judiciary department of the government. The province of that department is to decide litigations in particular cases. It is indeed charged with the interpretation of treaties; but it exercises this function only in the litigated cases; that is where contending parties bring before it a specific controversy. It has no concern with pronouncing upon the external political relations of treaties between government and government.
It must then of necessity belong to the executive department to exercise the function in question—when a proper case for the exercise of it occurs.
It appears to be connected with that department in various capacities, as the organ of intercourse between the nation and foreign nations—as the interpreter of the national treaties in those cases in which the judiciary is not competent, that is in the cases between government and government—as that power, which is charged with the execution of the laws, of which treaties form a part—as that power which is charged with the command and application of the public force.
This view of the subject is so natural and obvious—so analogous to general theory and practice—that no doubt can be entertained of its justness, unless such doubt can be deduced from particular provisions of the Constitution of the United States.
Let us see then if cause for such doubt is to be found in that Constitution.
The second Article of the Constitution of the United States, section 1st, established this general proposition, that “The executive power shall be vested in a president of the United States of America.”
The same article in a succeeding section proceeds to designate particular cases of executive power. It declares among other things that the president shall be commander in chief of the army and navy of the United States and of the militia of the several states when called into the actual service of the United States; that he shall have power by and with the advice of the Senate to make treaties; that it shall be his duty to receive ambassadors and other public ministers and to take care that the laws be faithfully executed.
It would not consist with the rules of sound construction to consider this enumeration of particular authorities as derogating from the more comprehensive grant contained in the general clause, further than as it may be coupled with express restrictions or qualifications; as in regard to the cooperation of the Senate in the appointment of officers and the making of treaties; which are qualifications of the general executive powers of appointing officers and making treaties: Because the difficulty of a complete and perfect specification of all the cases of executive authority would naturally dictate the use of general terms—and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which grants the legislative powers of the government the expressions are—“All legislative powers herein granted shall be vested in a Congress of the United States”; in that which grants the executive power the expressions are, as already quoted: the executive power shall be vested in a president of the United States of America.”
The enumeration ought rather therefore to be considered as intended by way of greater caution, to specify and regulate the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity to other parts [of] the Constitution and to the principles of free government.
The general doctrine then 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….
Helvidius 1, August 24, 1793
Several pieces with the signature of Pacificus were lately published, which have been read with singular pleasure and applause, by the foreigners and degenerate citizens among us, who hate our republican government, and the French Revolution; whilst the publication seems to have been too little regarded, or too much despised by the steady friends to both….
The basis of the reasoning is, we perceive, the extraordinary doctrine, that the powers of making war and treaties, are in their nature executive; and therefore comprehended in the general grant of executive power, where not specially and strictly excepted out of the grant….
If we consult for a moment, the nature and operation of the two powers to declare war and make treaties, it will be impossible not to see that they can never fall within a proper definition of executive powers. The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed. A treaty is not an execution of laws: it does not presuppose the existence of laws. It is, on the contrary, to have itself the force of a law, and to be carried into execution, like all other laws, by the executive magistrate. To say then that the power of making treaties which are confessedly laws belongs naturally to the department which is to execute laws, is to say that the executive department naturally includes a legislative power. In theory, this is an absurdity—in practice a tyranny.
The power to declare war is subject to similar reasoning. A declaration that there shall be war, is not an execution of laws: it does not suppose preexisting laws to be executed: it is not in any respect an act merely executive. It is, on the contrary, one of the most deliberative acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war: and of enacting as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace.
These remarks will be strengthened by adding that treaties, particularly treaties of peace, have sometimes the effect of changing not only the external laws of the society, but operate also on the internal code, which is purely municipal, and to which the legislative authority of the country is of itself competent and complete.
From this view of the subject it must be evident that although the executive may be a convenient organ of preliminary communications with foreign governments on the subjects of treaty or war; and the proper agent for carrying into execution the final determinations of the competent authority; yet it can have no pretensions from the nature of the powers in question compared with the nature of the executive trust, to that essential agency which gives validity to such determinations….
It remains to be inquired whether there be any thing in the Constitution itself which shows that the powers of making war and peace are considered as of an executive nature, and as comprehended within a general grant of executive power.
It will not be pretended that this appears from any direct position to be found in the instrument.
If it were deducible from any particular expressions it may be presumed that the publication would have saved us the trouble of the research.
Does the doctrine then result from the actual distribution of powers among the several branches of the government? Or from any fair analogy between the powers of war and treaty and the enumerated powers vested in the executive alone?
Let us examine.
In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested, and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature.
This conclusion becomes irresistible, when it is recollected that the Constitution cannot be supposed to have placed either any power legislative in its nature, entirely among executive powers, or any power executive in its nature, entirely among legislative powers, without charging the Constitution with that kind of intermixture and consolidation of different powers which would violate a fundamental principle in the organization of free governments. If it were not unnecessary to enlarge on this topic here, it could be shewn that the Constitution was originally vindicated, and has been constantly expounded, with a disavowal of any such intermixture.
The power of treaties is vested jointly in the president and in the Senate, which is a branch of the legislature. From this arrangement merely, there can be no inference that would necessarily exclude the power from the executive class: since the Senate is joined with the president in another power, that of appointing to offices, which as far as relate to executive offices at least, is considered as of an executive nature. Yet on the other hand, there are sufficient indications that the power of treaties is regarded by the Constitution as materially different from mere executive power, and as having more affinity to the legislative than to the executive character.
One circumstance indicating this is the constitutional regulation under which the Senate give their consent in the case of treaties. In all other cases the consent of the body is expressed by a majority of voices. In this particular case, a concurrence of two-thirds at least is made necessary, as a substitute or compensation for the other branch of the legislature, which on certain occasions could not be conveniently a party to the transaction.
But the conclusive circumstance is that treaties when formed according to the constitutional mode are confessedly to have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the Constitution to be “the supreme law of the land.”…
Helvidius 4, September 14, 1793
… Every just view that can be taken of this subject admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the Constitution, that the power to declare war, including the power of judging of the causes of war, is fully and exclusively vested in the legislature: that the executive has no right, in any case to decide the question whether there is or is not cause for declaring war: that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite or proper: and that for such more than for any other contingency, this right was specially given to the executive.
In no part of the Constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man: not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast—ambition, avarice, vanity, the honorable or venial love of fame—are all in conspiracy against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence….
Conversation-based seminars for collegial PD, one-day and multi-day seminars, graduate credit seminars (MA degree), online and in-person.
