the "evil" of the legislature becoming involved in "the details of execution,"¹⁴⁶ and two
years later warned of the "tyranny of the Legislatures"¹⁴⁷—but it certainly would have
displeased him.

Perhaps the most frequently quoted statement from Mr. Jefferson relied upon by
advocates of broad congressional "war" powers was his First Annual Message to Congress
of December 8, 1801. (Indeed, one highly respected constitutional scholar was so
enamored with the statement that he quoted it at length *twice* in a single law review
article.¹⁴⁸) Discussing a naval engagement with the Barbary Pirates, President Jefferson
told Congress:

> I sent a small squadron of frigates into the Mediterranean, with assurances to that power [Tripoli] of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The bey had already declared war in form. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. . . . Unauthorized by the constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries.¹⁴⁹

Several things can be noted about this report. Although Jefferson was, indeed, very deferential toward legislative authority to authorize the commencement of offensive hostilities, there is no indication that his decision to deploy a squadron of armed U.S. naval

146 In a letter to Edward Carrington from Paris, dated August 4, 1787, Jefferson wrote: "I think it very material, to separate, in the hands of Congress, the executive and legislative powers, as the judiciary already are, in some degree. This I hope, will be done. the want of it has been the source of more evil than we have experienced from any other cause. Nothing is so embarrassing nor so mischievous, in a great assembly, as the details of execution. The smallest trifle of that kind occupies as long as the most important act of legislation, and takes place of everything else. Let any man recollect, or look over, the files of Congress; he will observe the most important propositions hanging over, from week to week, and month to month, till the occasions have passed them, and the things never done." 6 THE WRITINGS OF THOMAS JEFFERSON 228 (Mem. ed. 1903).

147 In a March 14, 1789, letter to Madison, Jefferson warned: "The executive, in our governments, is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years." 7 *id.* at 312.

148 *See supra, note 131.*

149 3 THE WRITINGS OF THOMAS JEFFERSON 328-29 (Mem. ed. 1903).

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vessels to the Mediterranean to protect American commerce—in a situation where he must have perceived "imminent involvement in hostilities was clearly indicated by the circumstances," to quote the War Powers Resolution—was preceded by "consultation" of any kind with Congress.

Since this issue is analogous in some respects to the present deployment in the Persian Gulf, which some members have suggested infringes upon the power of Congress to "declare war," it is worth a moment or two of extra consideration. By the time Jefferson took office the issue had been considered and resolved in the Congress. In 1798 the House had approved a bill "for the protection of trade." Section four of the bill was written in such a way as to "authorize" the President to use the Navy to protect U.S. convoys. Speaker of the House John Dayton—the youngest man to sign the Constitution—objected to this provision as both unnecessary and potentially establishing a misleading precedent. While recognizing the power of Congress to "declare war," Speaker Dayton argued (as summarized in the *Annals of Congress*):

> [W]hether the declaration should be made, or refused to be made, the military and naval force was not the less under the direction of the President, to be used as should appear to be most likely to promote the general welfare, having regard to the existing state of things, whether peace or war. That the Commander-in-Chief possessed the Constitutional power of employing these armed vessels as convoys in time of peace, he himself had no doubt . . . . It was, therefore, nugatory to enact, in the words of the section, "that the President of the United States be authorized and empowered to employ the armed vessels as convoys," or in any other manner for the purposes of defence, since he already possessed that power and authority, derived too from a higher source, the people and the Constitution. It might, indeed, be worse than nugatory, it might be of dangerous precedent, and considered as carrying a strong implication that, without this law, he could have no such authority . . . .¹⁵⁰

Taking a similar approach, Representative Samuel Sewall added that, "with respect to the Army, he believed no instance had ever occurred in which the President had been directed to employ, or restricted from employing, the armed force in any particular manner."¹⁵¹ The section in question was then deleted from the bill by voice vote.

But I digress. Let me return to President Jefferson, and the assertion he made to Congress that he had authorized the U.S. naval squadron to limit its actions to those of a

150 8 ANNALS OF CONG. 105 (1798).

151 *Id.* at 1457.

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purely "defensive" nature. By authority of Congress, in 1929 the Office of Naval Records and Library published the first volume of a collection entitled *Naval Documents Related to the United States Wars with the Barbary Powers*. The documents it contains, reprinted from official government archives, suggest that Mr. Jefferson was being less than candid with Congress about his conduct in the Mediterranean.

Consider, for example, this excerpt from a message from the Acting Secretary of the Navy to Captain Richard Dale (commander of the American Squadron in the Mediterranean):

> I am . . . instructed by the President to direct, that you proceed with all possible expedition, with the squadron under your command, to the Mediterranean. . . .

> [S]hould you find on your arrival at Gibraltar that all of the Barbary Powers, have declared War against the United States, you will then distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce & chastise their insolence—by sinking, burning or destroying their ships & Vessels wherever you shall find them.152

Although Jefferson made much of the fact that the Tripolitan warship had been "disabled from committing further hostilities, [and then] liberated with its crew," the official Naval documents establish that this was not in any way connected with the perceived powers of Congress and the President to authorize military force. The orders given by Captain Dale to Lieutenant Sterett directed that the Enterprise proceed "with all posseable [sic] dispatch for the Island of Malta, there to take in is [sic] much water as you can possibly [sic] bring back," and "make every Exertion to Join me again as soon as possible." It continued:

> In your Passage to and from Malta you will not chace [sic] out of your way particularly in going, as you have not much water on board . . . [S]hould you fall in with any of the Tripolitan Corsairs that you are confident, you can Manage, on your Passage to Malta you will heave all his Guns Over board. Cut away his Masts, & leave him In a situation, that he can Just make out to get into some Port, but if coming back you will bring her with you if you think you can doe [sic] it with safety but on no account run any risque [sic] of your vessel or the health of your Crew . . . .153

Whether Jefferson was simply trying to get Congress formally on board "at the takeoff," or had other reasons, it seems clear from the records that he authorized a far more "offensive" response to Tripolitan aggression than was evident in his report to Congress. Furthermore,

152 1 NAVAL DOCUMENTS RELATED TO THE UNITED STATES WARS WITH THE BARBARY POWERS 465, 467 (1939) (emphasis added).

153 Id. at 534-35 (emphasis added).

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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 UStates;" in that which grants the Executive Power the expressions are, as already quoted, "The EXECUTIVE PO{WER} shall be vested in a President of the UStates of America." ...

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 qu{a}lifications which are expressed in the instrument. ...

It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are 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.¹⁵⁸

Hamilton was a principal author of the *Federalist Papers*, and advocates of a narrow interpretation of the "commander in chief" power are fond of quoting from essay number 69. Consider this excerpt from the testimony you received a few weeks ago from Arthur Schlesinger, Jr.:

> The Framers understood the commander in chief clause, however, as conferring a merely ministerial function, not as creating an independent and additional source of executive authority. The commander in chief clause definitely did not bestow war-making power on the chief executive. It meant only, in Alexander Hamilton's words, that the president should "have the direction of war when authorized or begun." Hamilton contrasted this strictly limited assignment with the power of the British king -- a power that, as Hamilton said, "extended to the declaring of war and to the raising and regulating of fleets and armies, -- all which, by the Constitution under consideration, would appertain to the legislature."

Professor Schlesinger has combined two separate quotations here, and I shall discuss them in order. In the first, he quotes Hamilton as saying the President should "have the direction of war when authorized or begun." It is worth noting that Hamilton did not say that the President should have the direct of war *only when authorized by Congress*. The qualifying words "or begun" reflect Hamilton's widely shared view that in the event of a "war" imposed upon the United States by the decision of another Country the President

158 15 THE PAPERS OF ALEXANDER HAMILTON 33, 39, 42 (H. Syrett, ed., 1969) (emphasis added).

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would by the Constitution be empowered as Commander in Chief to defend the nation
without awaiting authorization by Congress.

This point was made again by Hamilton in the first of his "Examination" articles in
the *New York Evening Post* under the pseudonym Lucius Crassus, in criticizing
Jefferson's suggestion (discussed above) that following a declaration of war against the
United States by the Barbary Pirates the President was limited to "defensive" measures
until Congress authorized more. As I have already noted, Jefferson—having already
authorized the American naval squadron to sink Tripolian vessels "wherever you shall find
them"¹⁵⁹—misstated the situation to Congress. His narrow definition of the Commander
in Chief power outraged Hamilton, who wrote on December 17, 1801:

> [The Constitution provides that] "The Congress shall have power to declare War;" the plain meaning of which is that, it is the peculiar and exclusive province of Congress, *when the nation is at peace*, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received; in other words, it belongs to Congress only, *to go to War*. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already *at war*, and any declaration on the part of Congress is nugatory; it is at least unnecessary.¹⁶⁰

While it is difficult under normal circumstances to establish the "winner" in such debates,
in this instance, not only did Jefferson *act* in accordance with Hamilton's theory, but a
study by the Congressional Research Service of the Library of Congress also concluded
that "Congress apparently accept[ed] Hamilton's view."¹⁶¹ Even more importantly,
Hamilton's view was also embraced by the Supreme Court in 1863 in *The Prize Cases*.¹⁶²

Let us now take a closer look at Hamilton's assessment of the "commander in chief" power in *Federalist* No. 69—which is the source of the remainder of the quotation I extracted from Professor Schlesinger's testimony:

> The President is to be the "Commander in Chief of the
> army and navy of the United States["] . . . . In most of these
> particulars the power of the President will resemble equally

159 *See supra*, note 152 and accompanying text.

160 25 THE PAPERS OF ALEXANDER HAMILTON 455-56 (emphasis in original).

161 CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION 327 (92d Cong., 2d. Sess, Senate Doc. 92-82, 1973).

162 "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bund to accept the challenge without waiting for any special legislative authority. . . . The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact." *The Prize Cases*, 67 U.S. (2 Blk.) 635 (1863).

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that of the King of Great Britain and of the Governor of New-York. The most material points of difference are these — ...

Secondly, the President is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great-Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy; while that of the British King extends to the *declaring* of war and to the *raising* and *regulating* of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.¹⁶³

Note that Hamilton compares the President's power of "supreme command and direction of the military and naval forces" to that of the British King (and the Governor of New York—who was the most powerful chief executive of any of the States). This is hardly a "ministerial function," as Schlesinger asserts—if by that term Professor Schlesinger means that the President was to "lack discretion" in his decisions on where troops were to be deployed in peacetime, or how they were to be used during war. The exceptions to the King's power Hamilton enumerates are both unremarkable—being in each instances expressly provided in article I, section 8, of the constitutional text—and also fully consistent with the view that the Congress had no authority to override the President's judgement on military deployments. (The impeachment power was a check against the President intentionally initiating a foreign "war" without the sanction of Congress.)

It is very clear that Hamilton favored a very powerful executive in the new Constitution. Consider this excerpt from the transcript of one of Hamilton's proposals made at the Constitutional Convention by Robert Yates:

> The executive to have the power of negating all laws—to make war or peace, with the advice of the senate—to make treaties with their advice, but to have the sole direction of all military operations, and to send ambassadors and appoint all military officers, and to pardon all offenders, treason excepted, unless by advice of the senate.¹⁶⁴

Two points relating to this excerpt deserve comment. First, many of Hamilton's provisions were ultimately incorporated in the Constitution. Second, it can hardly be said to support the view that the Congress may direct the President where to deploy military forces.

163 THE FEDERALIST NO. 69 at 464-65.

164 Reprinted in 4 THE PAPERS OF ALEXANDER HAMILTON 201.

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Returning to the *Federalist Papers*, Hamilton emphasized to the American people the wisdom of the decision by the Constitutional Convention to establish a "vigorous executive"—consisting of a single President who could act without needing to obtain the approval of even an executive "council"—and to invest the office with certain exclusive powers relating to the national security. For example, Hamilton wrote in *Federalist* number 70 in March of 1788:

> Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks . . . .

> That unity is conducive to energy will not be disputed. 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.

> This unity may be destroyed in two ways; either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject in whole or in part to the controul and co-operation of others, in the capacity of counsellors to him. . . .

> In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarring of parties in that department of the government, thought they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection; and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favourable circumstances palliate or atone for the disadvantages of dissention in the executive department. Here they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure, to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the executive, which are the most necessary ingredients in its composition, vigour and expedition, and this without any counterbalancing good. In the conduct of war, in which the energy of the executive is the bulwark of the national security every thing would be to be apprehended from its plurality.165

One can only imagine how Hamilton would react to the present suggestion that Congress has a right to "veto" the President's decisions with respect to military deployments.

165 THE FEDERALIST NO. 70 at 471-73, 475-76 (J. Cooke, ed. 1961) (A. Hamilton).

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James Madison

In fairness; it should be noted that, at Jefferson's urging,¹⁶⁸ Madison took up his pen and strongly disagreed with Hamilton's assertion in his *Pacificus* letters of broad executive powers in foreign affairs. For a variety of reasons, I would agree with scholars such as Myres McDougal and Asher Lans, who have concluded that Madison's *Helvidius* letters were deeply influenced by his "desire to befriend the French Republic . . . ."¹⁶⁹ Both Jefferson and Madison hoped that the United States would side with France in its war with Great Britain. Professor Marvin Meyers, editor of *The Mind of the Founder: Sources of the Political Thought of James Madison*, notes that Jefferson and Madison were unhappy with Washington's neutrality proclamation because they believed it neglected "America's moral, political, and treaty obligations to revolutionary France,"¹⁷⁰ and that Madison "saw a better chance of settling policy decisions his own way in Congress than in the executive branch, as his relations with Washington deteriorated."¹⁷¹ Put simply, Madison was "forum shopping" in his *Helvidius* letters. (As we have already seen, Hamilton's view of Executive power over foreign affairs virtually paraphrased Jefferson's arguments of three years earlier¹⁷²—and yet it was *Jefferson* who urged Madison to challenge him.)

Furthermore, Madison's *Helvidius* letters were in many respects in conflict with his own earlier views of relevance to this issue—statements made on occasions when he had no obvious policy preference to influence his analysis. Under the Articles of Confederation there was no "executive" and the power "to make war" was expressly vested

168 Jefferson's preoccupation with the welfare of France is apparent in his letter to Madison of July 7, 1793, enclosing copies of two of Hamilton's *Pacificus* letters, and urging his friend to respond. Jefferson wrote: "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.—Never in my opinion, was so calamitous an appointment made, as that of the present Minister of F[rance] here. Hot headed, all imagination, no judgment, passionate, disrespectful & even indecent towards the P. [President Washington] in his written as well as verbal communications, talking of appeals from him to Congress, from them to the people . . . ." 6 THE WRITINGS OF THOMAS JEFFERSON, (Ford ed.) at 338. This paragraph suggests that Jefferson, who had served as U.S. Minister to Paris and was known to favor the French position in its dispute with Great Britain, may have been motivated more by his affection for France (and dislike for Britain) than by concerns about Hamilton's constitutional theory. This conclusion is reinforced by the fact that Hamilton's basic conclusion about the control of foreign affairs was essentially paraphrased from Jefferson's memorandum of three years earlier. *See supra, text accompanying notes 132 & 134.*

169 McDougal & Lans, *Treaties and Congressional-Executive or Presidential Agreements: Interchangable Instruments of National Policy*, 54 YALE L. J. 181, 249 (1945).

170 THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 199 (rev. ed. 1981).

171 *Id.* at 200.

172 *See supra, note 132 and accompanying text.*

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in the Continental Congress. That language was initially carried over into the new draft Constitution, but Madison and Gerry moved to replace "make" with "declare." It may be useful to recount that decision at this time, as reflected in Madison's own notes from the Convention:

"To make war"

Mr. Pinkney opposed the vesting this power in the Legislature. Its proceedings were too slow. It w[d] meet but once a year. the H[s] of Rep[s]. would be too numerous for such deliberations. The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions. . . .

Mr. Butler. The Objections agst. the Legislature lie in a great degree agst. the Senate. He was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.

Mr. Madison and Mr. Gerry moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.

Mr. Sharman thought it stood very well. The Executive sh[d] be able to repel and not to commence war. ""Make" is better than "declare" the latter narrowing the power too much.

Mr. Gerry never expected to hear in a republic a motion to empower the Executive alone to declare war. . . .

Mr. Mason was agst. giving the power of war to the Executive because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred "declare" to "make."

On the motion to insert "declare"—in place of "make," it was agreed to.¹⁷³

Madison notes that the initial vote was 7 to 2 in favor of the change to "declare," but adds in a footnote that "On the remark by Mr. King that 'make' war might be understood to 'conduct' it which was an Executive function, Mr. Elsworth gave up his objection, and the vote of Con. was changed to ay."¹⁷⁴ From this excerpt it appears reasonably clear that the Founding Fathers drew a distinction between "offensive" and "defensive" uses of armed force, and that they did not intend Congress to be involved in the actual "conduct" of military operations.

During the Constitutional Convention Madison argued that "[t]he President . . . would necessarily derive . . . much power and importance from a state of war . . . ."¹⁷⁵

173 4 THE WRITINGS OF JAMES MADISON 227-28 (G. Hunt ed. 1903).

174 *Id.* at 228.

175 *Id.* at 400.

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Later, during the Virginia Ratification Convention, he even used an analogy to the power of the British King in explaining the separation of "war" powers under the proposed new Constitution. On June 14, 1788, Madison argued:

> Mr. Chairman, the honorable gentleman has laid much stress on the maxim, that the purse and sword ought not to be put in the same hands, with a view of pointing out the impropriety of vesting this power in the general government. But it is totally inapplicable to this question. . . . The only rational meaning, is, that the sword and purse are not to be given to the same member. Apply it to the British government, which has been mentioned. The sword is in the hands of the British king, the purse in the hands of the parliament. It is so in America, as far as any analogy can exist. . . . [T]he president is to have the command; and, in conjunction with the senate, to appoint the officers. The means ought to be commensurate to the end. The end is general protection. This cannot be effected without a general power to use the strength of the union. . . . [W]here power can be safely lodged, if it be necessary, reason commands its cession. In such case it is imprudent and unsafe to withhold it. . . . I can see no danger in submitting to practice an experiment which seems to be founded on the best theoretic principles.¹⁷⁶

> To give Congress—which already controls the "purse"—the power to decide ultimately upon the deployment of military forces would clearly be to violate Madison's theory of separating control of the "purse" from control of the "sword."¹⁷⁷

> Furthermore, Madison's speeches to the Virginia Ratification Convention establish that he shared Jefferson's concern about the "tyranny of the legislatures."¹⁷⁸ In proposing that the Constitution be amendment by adding a Bill of Rights, Madison noted on June 8, 1789:

> In the declaration of rights which that country [Great Britain] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. . . . [I]t may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States . . .

¹⁷⁶ 5 id. 195-97.

¹⁷⁷ In a June 8, 1789 speech to the Virginia Convention, Madison proposed a series of amendments to the Constitution which included: "The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive . . . ." *Id.* at 379.

¹⁷⁸ *See supra, note 147 and accompanying text.*

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In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be levelled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control.¹⁷⁹

Madison also shared Jefferson and Hamilton's view that "exceptions" to the President's article II, section 1, "Executive" power which were vested in the Senate or the Congress were intended to be construed "strictly." On June 17, 1789, when he introduced a bill in the House of Representatives to establish the Department of Foreign Affairs, a debate arose over whether the President needed the approval of the Senate to remove the Secretary of Foreign Affairs (later that year redesignated Secretary of State). Madison argued that the President should be free to dismiss members of his cabinet despite the fact that the Constitution required Senate "advice and consent" to their appointment, and reasoned:

> The doctrine . . . which seems to stand most in opposition to the principles I contend for, is, that the power to annul an appointment is, in the nature of things, incidental to the power which makes the appointment. I agree that if nothing more was said in the Constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be a great force in saying that the power of removal resulted by a natural implication from the power of appointing. But there is another part of the Constitution no less explicit . . . ; it is that part which declares that the Executive power shall be vested in a President of the United States. The association of the Senate with the president in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly."¹⁸⁰

As *Helvidius* Madison spoke disdainfully of Locke and Montesquieu (of necessity, since, as he acknowledged, their theories of "executive" power undercut the position he advocated in 1793), arguing at one point "Writers . . . such as Locke, and Montesquieu . . . are evidently warped by a regard to the particular government of England, to which one of them owed allegiance; and the other professed an admiration bordering on idolatry."¹⁸¹ And yet, in *Federalist* No. 47, in expounding the meaning of the Constitution for the American people, he referred with favor to "the celebrated Montesquieu" as "[t]he oracle

179 5 THE WRITINGS OF JAMES MADISON 380-82.

180 1 ANNALS OF CONG. 496-97 (1789)(emphasis added).

181 THE MIND OF THE FOUNDER, *supra* note 170 at 203.

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who is always consulted and cited" on the subject of separation of powers.¹⁸² Not surprisingly, Madison subsequently stated that the task of replying to Hamilton's essay was "the most grating one I have ever experienced . . . ."¹⁸³

To take just one further example, consider Representative Madison's reaction to Washington's inquiry as to whether the "advice and consent" power of the Senate allowed that body to place conditions on the destination or grade of diplomatic nominees. As Washington recounted in his diary:

> Had some conversation with Mr. Madison on the propriety of consulting the Senate on the places to which it would be necessary to send persons in the Diplomatic line, and Consuls; and with respect to the grade of the first—His opinion coincides with Mr. Jay's and Mr. Jefferson's—to wit—that they have no Constitutional right to interfere with either, and that it might be impolitic to draw it into a precedent, their powers extending no further than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution.¹⁸⁴

This view is hardly consistent with the idea which has recently become vogue that the Constitution made Congress the "senior partner"¹⁸⁵ in the field of foreign affairs.

## Traditional Congressional Deference

When members of the Constitutional Convention served in the early congresses, they established a strong practice of deference to the President in foreign affairs. For example, when the Department of Foreign Affairs was established in the First Congress the Secretary was charged simply with carrying out the directions of the President¹⁸⁶—in sharp contrast to the Secretary of the Treasury, who was required to make regular reports to Congress.

Similarly, when funds were first appropriated for foreign affairs, the statute provided that:

182 THE FEDERALIST No. 47 at 324 (J. Cooke, ed. 1961) (J. Madison). See also, THE MIND OF THE FOUNDER, *supra* note 170 at 183.

183 *Quoted in* GOLDSMITH, *supra* note 120, at 404.

184 *Quoted in* 16 THE PAPERS OF THOMAS JEFFERSON 380 n. (J. Boyd, ed. 1961).

185 See, e.g., testimony of Arthur Schlesinger, Jr., before the Special Subcommittee on War Powers, 14 July 1988, p. 3 (typewritten).

186 1 Stat. 28 (1789).

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conduct of an effective foreign policy. This lesson had been reinforced during the experience under the Articles of Confederation, when the Continental Congress had been responsible for the exercise of Executive powers in the absence of an Executive.

Indeed, as early as 1775, the control of foreign affairs was largely delegated to a five member Committee of Secret Correspondence—chaired by Benjamin Franklin—whose sensitive proceedings were kept from most other members of Congress. When France agreed to provide covert assistance to the American Revolution,¹⁹⁰ Benjamin Franklin and Robert Morris (also a member of the Committee of Secret Correspondence) agreed that it was the committee's "indispensable duty to keep it a secret, even from Congress." Indeed, they observed: "We find, by fatal experience, the Congress consists of too many members to keep secrets."¹⁹¹ (It is perhaps worth noting at this point that the Congress of 1988 has approximately ten times as many members as the First Continental Congress of 1774.)

The records of the debates in the Constitutional Convention establish that it was felt necessary to keep some legislative proceedings relating to foreign and national security affairs secret from the American people. Article I, section 5, provides in part that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such parts as may in their Judgment require Secrecy . . . ." Madison notes that an early version of this language provided "except such as relate to treaties & military operations."¹⁹² When an effort was subsequently made to limit this clause to protecting only the journal of the Senate, it was noted that "cases might arise where secrecy might be necessary in both Houses. Measures preparatory to a declaration of war in which the House of Reps. was to concur, were instanced."¹⁹³ Further, a major reason why the power to consent to the ratification of treaties was limited to the Senate was that "the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature."¹⁹⁴

The Founding Fathers believed that the new nation's interests could best be served if the Government had access to sensitive intelligence information about other countries; and they realized that foreign sources would be unlikely to share their information with the United States if it would be disclosed even to a Senate of 22 members. John Jay, in

190 Roughly 90 per cent of the gunpowder used by the American revolutionaries during the first two years of the war came from covert assistance from France, Spain, and other European enemies of the British. See, e.g., A. DECONDE, A HISTORY OF AMERICAN FOREIGN POLICY 25 (2d. ed. 1971).

191 *Quoted in Sayle, The Historical Underpinings of the U.S. Intelligence Community, 1 INT'L J. INTELLIGENCE AND COUNTERINTELLIGENCE* 5 (Spring 1986).

192 4 WRITINGS OF JAMES MADISON 166.

193 *Id.* at 450.

194 *Id.* at 397 (Mr. Sherman).

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*Federalist No. 64*, explained this dilemma during the debate over ratification of the proposed Constitution:

> It seldom happens in the negociation of treaties of whatever nature, but that perfect secrecy and immediate dispatch are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The convention have done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.

> They who have turned their attention to the affairs of men, must have perceived that there are tides in them. Tides, very irregular in their duration, strength and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs, is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay even when hours are precious. The loss of a battle, the death of a Prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either, should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective if no attention had been paid to those objects.¹⁹⁵

Indeed, the need for secrecy in certain governmental activities was seen as being so obvious that the delegates to the Federal Convention "readily adopted"¹⁹⁶ a series of "secrecy" rules, prohibiting members from taking copies of resolutions and providing that "nothing spoken in the House be printed, or otherwise published or communicated without leave."¹⁹⁷ James Madison made two noteworthy observations about the convention's extensive precautions to guarantee secrecy: (1) although the public was clearly anxious to learn what was taking place in Philadelphia, Madison saw no evidence of any public

¹⁹⁵ THE FEDERALIST NO. 64 at 432, 433-35 (J. Cooke, ed. 1961)(J. Jay) (emphasis added).

¹⁹⁶ C. ROSSITER, 1787: THE GRAND CONVENTION 168 (1966).

¹⁹⁷ J. MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 at 28 (1966).

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"discontent . . . at the concealment"¹⁹⁸; and (2) Madison was convinced that "no Constitution would ever have been adopted by the convention if the debates had been public."¹⁹⁹

As in so many other areas, recent experience has affirmed the wisdom of the original scheme. Recent disclosures attributed to the former Chairman of the Senate Select Committee on Intelligence and the Speaker of the House of Representatives—to cite but two of many examples—suggest that George Washington's lack of confidence in "the secrecy of the Senate"²⁰⁰ was not simply paranoia.

## Executive Privilege

Related to the historic legislative deference in foreign affairs and the need for secrecy, is the constitutional doctrine of Executive Privilege—which the Supreme Court has recognized is at its strongest in the national security realm.²⁰¹

The initial debate over a national security executive privilege occurred in late March of 1792, after the House of Representatives called for documents on the failed military expedition of Major General St. Clair. Washington, who was concerned that his response, "so far as it should become a precedent, . . . should be rightly conducted," called a meeting of his cabinet.²⁰² Discussion continued over a two day period, with Washington concluding that he "could readily conceive there might be papers of so secret a nature as that they ought not to be given up." The cabinet met again on April 2 and reached unanimous agreement on the issue. As Jefferson explained:

> We had all considered and were of one mind, first, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public: consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the Head of a Department, who and whose papers were under the President alone; but that the

198 Madison letter to Jefferson, July 18, 1787, *reprinted in* 11 THE PAPERS OF THOMAS JEFFERSON, *supra* note 132 at 600.

199 *Quoted in* ROSSITER, *supra* note 196 at 167.

200 1 THE WRITINGS OF THOMAS JEFFERSON 190-91 (P. Ford, ed. 1892).

201 *United States v. Nixon*, 418 U.S. 683, 705-08, 710-12 (1974).

202 Among many sources that discuss this incident, see Younger, *Congressional Investigations and Executive Secrecy: A Study in the Separation of Powers*, 20 U. PITT. L. REV. 755 (1959).

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committee should instruct their chairman to move the House to
address the President.²⁰³

Jefferson "agreed... to speak separately to the members of the [House] committee, and bring them by persuasion into the right channel."²⁰⁴ As a result, the House rephrased its request—directing it to the President. The practice of addressing such requests to the President with the qualification "if not incompatible with the public interest" became standard procedure with respect to inquiries concerning national security matters.²⁰⁵

It is perhaps worth noting that the Washington Administration's unanimous viewpoint on what is now called "Executive Privilege" was not inconsistent with most of the views expressed in the House of Representatives at the time. When the St. Clair resolution, discussed above, was first introduced it was challenged by legislators as incompatible with the Constitution. In its defense, Representative Boudinot explained: "The present proposition goes no further than a simple request. Having signified the wish of the House, the President may adopt such measures in relation to the subject as he may see proper."²⁰⁶

The issue arose again in 1794, when the Senate sought copies of correspondence prepared by the United States Ambassador to France. Consistent with established practice, Attorney General William Bradford wrote that "it is the duty of the Executive to withhold such parts of the said correspondence as in the judgment of the Executive shall be deemed unsafe and improper to be disclosed."²⁰⁷

When the House in 1796 requested documents relative to the Jay Treaty in connection with an appropriations bill to implement the treaty, it was widely acknowledged in the House debate that the President had discretion to refuse to provide any sensitive parts of the requested information. Indeed, only one member of the House appeared to argue that the House had an absolute constitutional right to the documents.²⁰⁸

203 1 WRITINGS OF THOMAS JEFFERSON 303-04 (Mem. ed.).

204 *Id.* at 305.

205 See, e.g., *United States v. Curtiss-Wright Export Corp.*, 299 U.S. 304, 321 (1936), quoted *infra* note 92 and accompanying text; and *CORWIN, supra* note 107 at 113.

206 3 ANNALS OF CONG. 490 (1792).

207 *Quoted in A. SOFAER, WAR, FOREIGN AFFAIRS, AND CONSTITUTIONAL POWER* 84 (1976). Sofaer notes that Washington "accepted the view esposed by his Cabinet that he could withhold information in the public interest," and in his reply to the Senate's request for documents the President asserted that he had "directed copies and translations to be made [for the Senate]; except in those particulars which, in my judgment, for public considerations, ought not to be communicated." These included politically sensitive and highly critical comments by Gouverneur Morris about French political leaders. Sofaer notes that "no further Senate action was taken to obtain the material withheld." *Id.*, at 84-85.

208 5 ANNALS OF CONG. 601 (1796) (Rep. Lyman).

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In a strongly worded message, President Washington refused to make the documents available to the House of Representatives. Although James Madison—who had introduced the initial request for the documents—criticized the President's message, in the process he recognized the existence of a national security executive privilege. His objection was not that the President had denied information to Congress, but that the President's *justification* for so doing had involved a determination not of the sensitivity of the documents but of the need of the House for such information. As reported in the *Annals of Congress*, Madison argued:

> He thought it clear that the House must have a right, in all cases, to ask for information which might assist their deliberations on the subjects submitted to them by the Constitution; being responsible, nevertheless, for the propriety of the measure. He was as ready to admit that the Executive had a right, under a due responsibility, also, to withhold information when of a nature that did not permit a disclosure of it at the time. And if the refusal of the President had been founded simply on a representation, that the state of the business within his department, and the contents of the papers asked for, required it, although he might have regretted the refusal, he should have been little disposed to criticise it. ...
> 
> It belonged, he said, to each department to judge for itself. If the Executive conceived that, in relation to his own department, papers could not be safely communicated, he might, on that ground, refuse them, because he was the competent judge within his own department.²⁰⁹

In June of 1807, Thomas Jefferson wrote:

> All nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication. Hence, under our Constitution, in requests of papers, from the legislative to the executive branch, an exception is carefully expressed, as to those which he may deem the public welfare may require not to be disclosed . . . . The respect mutually due between the constituted authorities, in their official intercourse, as well as sincere dispositions to do for every one what is just, will always insure from the executive, in exercising the duty of discrimination confided to him, the same

209 5 ANNALS OF CONG. 773 (1796) (emphasis added).

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