The Historical Presidency: Competing Conceptions of the Separation of Powers: Washington's Request for an Advisory Opinion in the Crisis of 1793

The summer of 1793 saw the United States involved in its first foreign policy crisis under the new Constitution. Revolutionary France was at war with Great Britain and the rest of Europe, and on April 22, 1793, President George Washington issued his Neutrality Proclamation. American neutrality, however, was complicated by the Treaty of Amity and Commerce, signed with France in 1778. In order to resolve a number of pressing issues that threatened American neutrality, President Washington applied to the Supreme Court for an advisory opinion concerning American obligations to the warring powers. This step was not as strange as it may appear today. Formal advisory opinions issued by courts had a long and rich history in England and had played a role in the early American experience as well. (1) Despite this well-established precedent, John Jay's Supreme Court refused Washington's request. Although Washington's request and the Court's refusal bear directly on fundamental issues regarding the purpose and practice of the separation of powers and the relation between a republican government and the citizenry it serves, they have not received more than passing attention from political scientists. (2) Overshadowed by the apparently more important events of the same summer, such as Washington's proclamation and the subsequent Pacificus-Helvidius debates, (3) Washington's request and the Court's refusal have presumably looked insignificant in comparison. Despite its neglect by political scientists, the Court's refusal has long been of interest to legal scholars. The traditional legal interpretation of the episode holds that the Court's decision set the precedent for the absolute ban on advisory opinions and hence served to define more clearly the proper jurisdiction of the courts under the separation of powers doctrine (Story 1851, [section] 1571, 362 and 362n2; Tribe 1978, 57; see also Frankfurter 1924, 1007). The recent work of the legal scholars William Casto and Stewart Jay, however, has persuasively challenged this interpretation by arguing that the Court's decision was not based on accepted and shared constitutional principles requiring the repudiation of executive-judicial cooperation, in general, and of advisory opinions, in particular. The Court was instead guided by considerations of prudence, the most important of which was to avoid setting a precedent by which the executive was expected to consult the Supreme Court on issues of difficult legal interpretation regarding either treaties or the law of nations (Casto 2002, esp. 195; Holt 2000; Jay 1997, 153-70). By situating the events within a political rather than a merely legal context, this scholarship invites a reexamination of the entire episode by political scientists. In this article, I undertake this reexamination and show that the Court's refusal, properly understood, sheds new light on the nature, rationale, and problems of executive-judicial relations, and draws attention to the impact of shifting configurations of this relationship for the practice of republican politics more generally. In the first section of the article, I begin from the political purpose of Washington's request for an advisory opinion and argue that, at the deepest level, it issued from a subterranean but powerful link between judicial and executive power, a link that suggested an alliance between the two branches. This alliance was both advocated and practiced by President Washington and Chief Justice Jay, and consisted in the cooperation and coordination of the executive and judiciary for the sake of unified action according to shared policies. This practice, in turn, had implications for the manner in which the federal government interacted with or addressed the citizenry. In the second section of the article, I argue that the Court's refusal to advise Washington highlights the political considerations that prompted it to suspend judicial--executive cooperation and thus reveals an emerging recognition on the part of John Jay that the efficient operation of the federal government required, in addition to the institutional separation of powers, a political separation of the executive branch from the judiciary. …