CONCLUSIONS.

OUR CONSt.i.tUTION USUALLY grants those elected to the Presidency their legitimacy; with Washington, it was the reverse. His standing as the Father of the Country bestowed legitimacy on the Const.i.tution. It is hard to imagine another member of the founding generation who could guarantee that the Const.i.tution would overcome the centrifugal forces of its early years. Washington placed at the service of the young government his record as the general who had won the nation's independence, and his reputation for republican virtue etched in memory when he had stepped down from command.

Washington was not the greatest simply because he was the first. He did more than serve as the ceremonial head of government. Understanding instinctively that his actions set the example for his successors, Washington made decisions that fulfilled the Federalists' hope for independence and energy. He reserved to the executive control over the selection of government nominees; treated all subordinates as part of a unitary executive branch, with himself at the top; and fought to keep the internal deliberations of his advisers confidential.

Washington believed he had to interpret the Const.i.tution independently in executing his powers, whether by signing proposed bills or implementing those on the books. When it came time to enforce national laws and policies, Washington led the troops personally to demonstrate the energy and authority of the new government. In foreign affairs, Washington read the Const.i.tution to give him the executive's traditional leading role, including the interpretation of treaties and international law, the deployment of military force, and the conduct of diplomatic relations. He moved forcefully to keep the nation out of the European wars and to reach a settlement with Great Britain.

Washington demonstrated that a President could not succeed without his const.i.tutional powers. The Framers did not account for, and were openly hostile to, political parties. They believed that a President should stand above parties, which were seen as temporary factions a.s.sembling against the national interest.106 From the very beginning, Washington saw his office as advancing a set of policies, a program, which required the cooperation of the executive and legislative branches. Washington's administration devised the national banking system and the a.s.sumption of debts. It developed the policy of neutrality in the wars between Great Britain and France and set the nation on a hostile military course with the Indians. Washington understood the Presidency as giving him, not Congress, the initiative in defining foreign and domestic security policy. From the very beginning, Washington saw his office as advancing a set of policies, a program, which required the cooperation of the executive and legislative branches. Washington's administration devised the national banking system and the a.s.sumption of debts. It developed the policy of neutrality in the wars between Great Britain and France and set the nation on a hostile military course with the Indians. Washington understood the Presidency as giving him, not Congress, the initiative in defining foreign and domestic security policy.

Inst.i.tutional independence included recognition of the other branches' prerogatives. Only the legislature could create the bank, approve the Jay Treaty, or fund the troops on the frontier. While Washington was dismayed at the open partisanship of the Jeffersonian opposition, his administration began the first experiments in the coordination of executive and legislative branches through a common political party. Washington would even recognize perhaps the ultimate limitation on the Presidency. By stepping down after two terms, Washington introduced a republican rotation in office, a precedent unbroken until Franklin D. Roosevelt, which proved to be a political bulwark against executive tyranny. By combining const.i.tutional independence with const.i.tutional self-control, Washington set the example of a republican executive that his successors would follow.

CHAPTER 4.

Thomas Jefferson WHILE NOT ONE of the top three of our nation's "greatest" Presidents, Thomas Jefferson consistently ranks as one of the "great" after Washington, Lincoln, and FDR. No doubt, he owes some of his high standing to his achievements before and after his time in office. He drafted the Declaration of Independence, founded the University of Virginia, and served as governor of his state and envoy to France. He was an architect, scientist, farmer, and inventor. Yet, Jefferson was a bundle of contradictions, so much so that historian Richard Ellis t.i.tled a recent biography American Sphinx American Sphinx. Jefferson was perhaps our nation's most eloquent spokesman for human freedom, but at the same time kept slaves and fathered illegitimate children with one. As Leonard Levy has shown, he was a master of rhetoric in defense of civil liberties, but did not hesitate to use government power to pursue critics and opponents. He criticized the growth of federal power yet exercised it to limits rarely seen in American history to enforce an embargo. He demanded responsible, effective government but suffered from migraine headaches that prevented him from fulfilling his duties at times of high stress, both as governor and President.1 Nowhere do these contradictions seem to arise more sharply than with regard to Jefferson's views on executive power. Jefferson is widely thought to have opposed a strong Presidency. While drafting the Virginia const.i.tution, he attempted to strip the governorship of many of the executive's powers and re-t.i.tle the position as that of "Administrator."2 While envoy to France, he faulted the proposed Const.i.tution because it contained no presidential term limits. He worried that once elected, a President would be returned to office for life. "I am not a friend to a very energetic government. It is always oppressive," he explained to Madison. While envoy to France, he faulted the proposed Const.i.tution because it contained no presidential term limits. He worried that once elected, a President would be returned to office for life. "I am not a friend to a very energetic government. It is always oppressive," he explained to Madison.3 He praised the Const.i.tution because it created "one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative Body." He praised the Const.i.tution because it created "one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative Body."4 While Secretary of State, Jefferson adopted a theory of strict construction to oppose Hamilton's broad interpretation of the Const.i.tution's implied powers -- first with the creation of the national bank, then with the proclamation of neutrality -- and he organized America's first political party against the "monocrats" who were allegedly reinstalling features of the British monarchy in the United States. While President, Jefferson sought to reduce the size of bureaucracy and the military, lower taxes, enhance majority rule, and center the nation in his vision of an agrarian republic. He characterized his election "as real a revolution in the principles of our government as that of 1776 was in form," by saving the country from a Federalist Party that favored the executive. While Secretary of State, Jefferson adopted a theory of strict construction to oppose Hamilton's broad interpretation of the Const.i.tution's implied powers -- first with the creation of the national bank, then with the proclamation of neutrality -- and he organized America's first political party against the "monocrats" who were allegedly reinstalling features of the British monarchy in the United States. While President, Jefferson sought to reduce the size of bureaucracy and the military, lower taxes, enhance majority rule, and center the nation in his vision of an agrarian republic. He characterized his election "as real a revolution in the principles of our government as that of 1776 was in form," by saving the country from a Federalist Party that favored the executive.5 In office, however, Jefferson claimed the right to interpret the laws at odds with the courts and Congress, bought Louisiana even while doubting the act's const.i.tutionality, shepherded legislation through Congress, and tied the legitimacy of the Presidency to the will of the majority. His actions belie the straw man of a weak Jeffersonian Presidency, a fact not lost on his contemporaries. Hamilton said that during their time in the Washington administration, Jefferson "was generally for a large construction of the Executive authority" and was "not backward to act upon it in cases which coincided with his views."6 This was Hamilton's idea of a compliment. Henry Adams would conclude, in his magisterial history on Jefferson and Madison, that the former exercised presidential power "more completely than had ever before been known in American history." This was Hamilton's idea of a compliment. Henry Adams would conclude, in his magisterial history on Jefferson and Madison, that the former exercised presidential power "more completely than had ever before been known in American history."7 Many political scientists ever since have considered Jefferson an example of principle giving way before political expediency. Many political scientists ever since have considered Jefferson an example of principle giving way before political expediency.8 A growing minority of historians and political scientists, including Jeremy Bailey, Ralph Ketcham, David Mayer, and Gary Schmitt, argues that this contradiction proceeds from a false starting point. It is a.s.sumed that Jefferson favored a weak executive because he sought a limited national government. The two ideas, however, need not conflict. Jefferson indeed wanted a government of limited const.i.tutional powers balanced by states possessing significant sovereignty. In his draft of the 1798 Kentucky Resolutions, Jefferson argued that the Union represented only a compact between the states, rather than a national government representing one people. But within that framework, he favored a clean separation of powers that made each branch of the federal government supreme in its own sphere. For those matters properly cla.s.sified as executive in nature, the President would govern, subject to the explicit exceptions and power sharing set out in the Const.i.tution. He favored an executive branch headed by one individual, free of a council of advisors, to enhance executive accountability and responsibility, and sought to reconceptualize the office as the representative of a popular majority, elected to carry out an agenda. Jefferson embarked on a major innovation in presidential power, that of the President as party leader, which allowed him to promote a national program by coordinating the activities of the executive and legislative branches. Jefferson made the Presidency more powerful by making it more popular.9 Jefferson profoundly affected the Presidency by introducing the concept of the prerogative. He advanced the theory, clearly following Locke, that the President could act outside the Const.i.tution to protect the national interest in moments of great crisis or opportunity.10 In this, he differed from Hamilton and the Federalists, who believed that the formal powers of the President were flexible enough to address any national emergency. "The circ.u.mstances that endanger the safety of nations are infinite," Hamilton had written as Publius, "and for this reason no const.i.tutional shackles can wisely be imposed on the power to which the care of it is committed." In this, he differed from Hamilton and the Federalists, who believed that the formal powers of the President were flexible enough to address any national emergency. "The circ.u.mstances that endanger the safety of nations are infinite," Hamilton had written as Publius, "and for this reason no const.i.tutional shackles can wisely be imposed on the power to which the care of it is committed."11 Jefferson, however, followed a strict constructionist approach to interpreting the Const.i.tution, which resisted a broad reading of the President's formal powers. The prerogative allowed Jefferson to protect the country in unforeseen circ.u.mstances and keep his const.i.tutional principles. As in the Louisiana Purchase, he could act beyond the Const.i.tution when necessity demanded it. In exchange, the President had to throw himself upon the people for approval of his unconst.i.tutional act. That check reinforced Jefferson's innovation of placing the legitimacy of the Presidency on national election and his representation of the will of the majority. Jefferson, however, followed a strict constructionist approach to interpreting the Const.i.tution, which resisted a broad reading of the President's formal powers. The prerogative allowed Jefferson to protect the country in unforeseen circ.u.mstances and keep his const.i.tutional principles. As in the Louisiana Purchase, he could act beyond the Const.i.tution when necessity demanded it. In exchange, the President had to throw himself upon the people for approval of his unconst.i.tutional act. That check reinforced Jefferson's innovation of placing the legitimacy of the Presidency on national election and his representation of the will of the majority.12 Jefferson's conception of the executive power was the product of the lessons of experience. As governor of Virginia during the Revolution, when British forces had American troops on the run, Jefferson came to appreciate matching the executive's powers to its responsibilities. In discussing proposals for Virginia's new const.i.tution, Jefferson argued that the executive power did not reach as far as the British Crown's prerogatives, but at least included the power to enforce the laws and other powers not judicial or legislative in nature. During the Const.i.tutional Convention, Jefferson advised friends that the Const.i.tution should create an independent executive branch. "I think it very material to separate in the hands of Congress the Executive and Legislative powers," he wrote. "The want of it has been the source of more evil than we have ever experienced from any other cause."13 As Secretary of State, Jefferson believed that control over foreign relations was one of those executive powers, from which the Senate's role in treaty-making was only a narrow exception. While he urged Madison to write against Hamilton as Helvidius, Jefferson agreed with the rest of Washington's cabinet that the President should declare neutrality. As Secretary of State, Jefferson believed that control over foreign relations was one of those executive powers, from which the Senate's role in treaty-making was only a narrow exception. While he urged Madison to write against Hamilton as Helvidius, Jefferson agreed with the rest of Washington's cabinet that the President should declare neutrality.

Jefferson entered office after a bitter campaign. Jefferson considered the Federalists to be monarchists who wanted to duplicate the British political and economic system. In the election of 1800, his Republican Party swept Federalist majorities out of Congress, and John Adams out of the White House. But Jefferson tied in the Electoral College with his party's vice presidential candidate, Aaron Burr, even though his party intended that Jefferson become President. Under the rules of the Electoral College, each elector voted for two candidates, with the Vice President simply the runner-up. The tie threw the election into the lame-duck Congress, where Federalists entertained various schemes to deny Jefferson the Presidency, including swinging it to Burr or refusing to choose anyone at all. Hamilton apparently feared Burr more than Jefferson, and the Federalists eventually gave the latter the victory. The Twelfth Amendment, ratified in 1804, finally required electors to vote separately for President and Vice President, but the election of 1800 would be resolved in the House, and Jefferson would owe his selection to his claim that the President should represent the will of a national democratic majority.

The election represented the transfer of power from one political party to another without fighting or bloodshed, a rare thing in those days. In his inaugural address, Jefferson famously said, "We are all Republicans: we are all Federalists," to underscore the belief in representative government shared by all. Once in office, though, Jefferson reversed much of the Federalists' system. He unraveled the Hamiltonian financial structure by reducing government expenditures, cutting taxes, and retiring the national debt. This would pull the heart out of the network of financiers, merchants, and bureaucracy and reorient the country toward agriculture, western expansion, and a limited national government. However, his opposition to Federalist policies did not imply a rejection of the powers of the Presidency. Jefferson's characterization of the Hamiltonian system as monarchic was not an attack on executive power, but a criticism of the British system of executive corruption of the legislature. Jefferson would not hesitate to expand presidential power to achieve his own policies.

PERSONNEL.

JEFFERSON'S FIRST STEPS in unwinding the Federalists' system occurred in the area of personnel and law enforcement. Jefferson introduced the idea that the members of his cabinet, and most of the subordinate executive officials subject to presidential appointment, should hail from his party. Washington had sought the best characters for his cabinet, hence the selection of Jefferson himself as Secretary of State. Jefferson chose only Republican leaders for his cabinet, with Madison as Secretary of State and Gallatin as Treasury Secretary. Jefferson did not immediately turn out all federal employees and replace them with party supporters, but he gradually replaced half by the end of his first term.14 He had little problem refusing to sign the commissions of officers who had received "midnight appointments" at the end of Adams's term (one of them leading to the foundational Supreme Court decision in He had little problem refusing to sign the commissions of officers who had received "midnight appointments" at the end of Adams's term (one of them leading to the foundational Supreme Court decision in Marbury v Marbury v. Madison) Madison) or having his majorities in Congress repeal the Judiciary Act of 1801, which had created several new judgeships with Federalist occupants. or having his majorities in Congress repeal the Judiciary Act of 1801, which had created several new judgeships with Federalist occupants.

Jefferson's effort to supplant Federalist officials with Republicans was more than the realization that personnel shape policy. It created an alternative path for presidential control of the executive branch. Washington had relied on the const.i.tutional principle that he was personally responsible for taking care that the laws were faithfully executed. All officials within the executive branch were there to a.s.sist him in carrying out that const.i.tutional duty, and hence must be within his direct control. Jefferson supplemented this line of authority with the discipline of party politics. His appointees enforced administration policies because Jefferson headed the executive branch, and he headed their political party.

Jefferson became the inventor, though not the most ruthless pract.i.tioner, of the spoils system. Some states, such as Connecticut, experienced "a general sweep" of Federalists out of national offices, while others saw a more gradual replacement. The desire to reward the party faithful after the election only partially explains Jefferson's actions. Jefferson believed the executive branch represented the people as much as the legislature, and so he wanted Republicans to have the same share of offices as they had of the popular vote. He understood that executive officers make policy choices beyond robotically executing the law. By the end of his administration, Jefferson had placed party members in two-thirds of all executive offices. Because of Jefferson, today we accept with little controversy that Presidents may choose their own party members for most important government positions. That Jefferson had to rely on partisan considerations in appointments suggests that relying on formal const.i.tutional powers is simply not enough to control the executive branch.15

LAW ENFORCEMENT.

JEFFERSON'S VIEWS ON law enforcement laid a strong claim to presidential equality with the other branches. Among the most hated pieces of Federalist legislation were the Alien and Sedition Acts of 1798, which made it a crime to defame or libel the government (with truth as a defense). Jefferson and Madison had secretly drafted the Kentucky and Virginia Resolutions, which suggested that the states could resist unconst.i.tutional federal laws. Parts of the Acts expired at the end of the Adams administration, but Jefferson proceeded to pardon the ten individuals convicted under the law and ordered all prosecutions dropped. "A legislature had pa.s.sed a sedition law. The federal courts had subjected certain individuals to its penalties of fine and imprisonment," Jefferson wrote in 1811. "On coming into office, I released these individuals by the power of pardon committed to executive discretion, which could never be more properly exercised than where citizens were suffering without the authority of law, or, which was equivalent, under a law unauthorized by the const.i.tution, and therefore null."16 Even though the courts and Congress had found the Alien and Sedition Acts to be const.i.tutional, Jefferson used his power as President to prevent the laws from being executed. Even though the courts and Congress had found the Alien and Sedition Acts to be const.i.tutional, Jefferson used his power as President to prevent the laws from being executed.

Jefferson's decision was rooted in a strict view of the separation of powers and the right of each branch to interpret the Const.i.tution for itself. He utterly rejected the notion that the courts have the last word on the meaning of the founding doc.u.ment. In a letter to Abigail Adams explaining his actions, Jefferson a.s.serted that the executive and judiciary are "equally independent" in reviewing the const.i.tutionality of the laws. "You seem to think it devolved on the judges to decide on the validity of the sedition law," he wrote. "But nothing in the Const.i.tution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action a.s.signed to them."17 While the courts can view a law as const.i.tutional and allow cases to move forward, the President can hold a different view and refuse to bring prosecutions against those who violate the law and pardon those already convicted. In an 1819 letter, Jefferson cited his reversal of the Sedition Act convictions to show that "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the const.i.tution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal." While the courts can view a law as const.i.tutional and allow cases to move forward, the President can hold a different view and refuse to bring prosecutions against those who violate the law and pardon those already convicted. In an 1819 letter, Jefferson cited his reversal of the Sedition Act convictions to show that "each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the const.i.tution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal."18 While Jefferson did not challenge the courts' right to interpret the Const.i.tution, he denied that the judiciary's conclusions bound him in the exercise of his own responsibilities. While Jefferson did not challenge the courts' right to interpret the Const.i.tution, he denied that the judiciary's conclusions bound him in the exercise of his own responsibilities.

Jefferson's vision went further. He believed that Presidents ought to use the veto only when they were fairly certain that Congress had pa.s.sed an unconst.i.tutional law; he did not appear to think that he should veto laws because he disagreed with Congress's policy choices. On the other hand, Jefferson viewed his right to interpret the Const.i.tution as extending beyond the President's role in the legislative process. As the Alien and Sedition Acts episode shows, he believed a President could decline to prosecute laws that in his opinion violated the Const.i.tution. Similarly, Jefferson would not have expected the courts to feel bound by the views of the President and Congress on the const.i.tutionality of the laws that they enact.

JUDGES.

RELATIONS WITH THE judicial branch plagued the Jefferson administration. Federalists had a strong hold on the judiciary, and Jefferson thought of it as the last redoubt of his political opponents. "They have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the treasury, and from that battery all the works of republicanism are to be beaten down and erased."19 He believed that it was wholly appropriate for the executive and legislative branches to alter the personnel of the judicial branch in order to change the outcome of its decisions. Jefferson felt no unease in having Congress repeal new judgeships, postpone Supreme Court terms to influence decisions, and in his most ambitious effort, remove judges in an effort to change the direction of the law. He believed that it was wholly appropriate for the executive and legislative branches to alter the personnel of the judicial branch in order to change the outcome of its decisions. Jefferson felt no unease in having Congress repeal new judgeships, postpone Supreme Court terms to influence decisions, and in his most ambitious effort, remove judges in an effort to change the direction of the law.

Republicans in the House began by eliminating the new judge-ships created by the Federalists in 1801. They followed by attempting to remove the judges who were left. In 1803, Jeffersonians began impeachment proceedings against John Pickering of New Hampshire, a Federalist district judge who happened to be crazy and a drunk. His mental sickness while chief justice of the state supreme court had led to efforts to oust him, and when a seat on the federal bench opened, state leaders promoted their way out of the problem by recommending Pickering.20 In 1804, the Senate voted along strict party lines that Pickering's erratic behavior on the bench satisfied the "high crimes and misdemeanors" standard and removed him from office. Jefferson had written to the House to pa.s.s along complaints about Pickering and ask Congress to perform its const.i.tutional functions. In 1804, the Senate voted along strict party lines that Pickering's erratic behavior on the bench satisfied the "high crimes and misdemeanors" standard and removed him from office. Jefferson had written to the House to pa.s.s along complaints about Pickering and ask Congress to perform its const.i.tutional functions.

Pickering was only target practice for bigger game. Justice Samuel Chase, a signer of the Declaration of Independence and former Anti-Federalist, had infuriated Republicans with his political outbursts on the bench, which included an attack on universal manhood suffrage and the Judiciary Act of 1803. Jefferson wrote a letter to a Maryland Congressman suggesting impeachment: "Ought this seditious and official attack on the principles of our Const.i.tution, and on proceedings of a State, to go unpunished?"21 His majority in the House obliged, beginning impeachment proceedings on the day of Pickering's conviction. But the Senate refused to convict, establishing the precedent that impeachment would not be used to overturn judicial decisions. His majority in the House obliged, beginning impeachment proceedings on the day of Pickering's conviction. But the Senate refused to convict, establishing the precedent that impeachment would not be used to overturn judicial decisions.

Jefferson's attack on the judiciary is conventionally understood as a defeat, and in terms of const.i.tutional principle it was, but in terms of immediate politics, Jefferson came out ahead. After its decision in Marbury Marbury, the Supreme Court would not invalidate another federal law until Dred Scott Dred Scott a half-century later. The challenge to the judiciary effectively removed any threat that the federal courts would stand in the way of Jeffersonian legislation or presidential actions. Instead, the Marshall Court devoted itself to defending the prerogatives of Congress by vindicating the powers of the national government against those of the states. Jefferson's expanded view of the rights of the President and Congress against the judiciary, while constrained by the Senate in the end, helped him remove an obstacle to his policy agenda. a half-century later. The challenge to the judiciary effectively removed any threat that the federal courts would stand in the way of Jeffersonian legislation or presidential actions. Instead, the Marshall Court devoted itself to defending the prerogatives of Congress by vindicating the powers of the national government against those of the states. Jefferson's expanded view of the rights of the President and Congress against the judiciary, while constrained by the Senate in the end, helped him remove an obstacle to his policy agenda.

Jefferson's confrontation with the courts gave birth to another invocation of executive power. While Washington had refused to disclose treaty doc.u.ments to the House, Jefferson withheld information from the judiciary. The occasion was the Burr conspiracy, whose historical details still remain unclear. In 1805, Aaron Burr (after killing Alexander Hamilton in a duel while no longer Vice President) hatched a scheme to launch a military expedition in the American Southwest. Depending on the account one believes, Burr either sought to attack Spanish possessions and bring them into the United States, or to detach territories from the United States and create for himself an independent empire, or some combination of the two. Burr had several private dinners with Jefferson at the White House while he secretly advanced his plans in Washington. In the end, one of the coconspirators, General James Wilkinson, turned against Burr as he was forming his troops, arrested him and other plotters, and sent them to Washington for trial.

Burr was prosecuted for treason before Chief Justice John Marshall, sitting as a federal trial judge in Virginia. Burr's defense sought information in Jefferson's possession, including reports on the conspiracy sent to the President. Marshall issued a subpoena for the doc.u.ments, but Jefferson refused to acknowledge the Court's right to force the executive to produce information for its proceedings. He explained to the federal district attorney that a court's subpoena could not override the Const.i.tution, which "enjoins his constant agency" in leading the American people.22 Returning to his consistent view that the separation of powers required independence for each branch of government, Jefferson argued that the executive would become subordinate to the judiciary "if he were subject to the commands of the latter, and to imprisonment for disobedience." Proposing an argument that Bill Clinton would try, unpersuasively, before the Supreme Court, Jefferson argued that responding to the commands of the judiciary would "keep him constantly trudging from north to south and east to west." Jefferson would be "the sole judge" of what government doc.u.ments to make public. As a compromise, he sent a limited set of doc.u.ments to the U.S. attorney and ordered him only to release portions needed in the interests of justice. Marshall did not pursue the subpoena any further, and Burr and his coconspirators were acquitted. Jefferson's short-term political wishes were frustrated -- he was convinced that Burr was guilty of treason and had virtually convicted him in a special message to Congress -- but he established the first true precedent of executive privilege. Returning to his consistent view that the separation of powers required independence for each branch of government, Jefferson argued that the executive would become subordinate to the judiciary "if he were subject to the commands of the latter, and to imprisonment for disobedience." Proposing an argument that Bill Clinton would try, unpersuasively, before the Supreme Court, Jefferson argued that responding to the commands of the judiciary would "keep him constantly trudging from north to south and east to west." Jefferson would be "the sole judge" of what government doc.u.ments to make public. As a compromise, he sent a limited set of doc.u.ments to the U.S. attorney and ordered him only to release portions needed in the interests of justice. Marshall did not pursue the subpoena any further, and Burr and his coconspirators were acquitted. Jefferson's short-term political wishes were frustrated -- he was convinced that Burr was guilty of treason and had virtually convicted him in a special message to Congress -- but he established the first true precedent of executive privilege.

FOREIGN AFFAIRS: WAR.

IT IS IN FOREIGN AFFAIRS that fans of Jefferson can make their best claim for his inclusion in the list of greatest American Presidents. While Jefferson used his powers as Commander-in-Chief to wage a successful offensive against the Barbary states -- inspiring the lyric "to the sh.o.r.es of Tripoli" -- his most important presidential act involved an exchange of property rather than cannon shot.

Despite his earlier attacks on executive power, Jefferson did not seek to withdraw the President's powers in war. Jefferson had planned to reduce the federal budget by cutting the military to the bone, but events caused him to depend on the navy maintained by the Adams administration. The immediate cause was relations with the Barbary pirates. Although history remembers them as bandits, they did in fact inhabit autonomous regions -- Algiers, Tripoli, and Tunis -- within the Ottoman Empire, and an independent nation, Morocco. Their leaders preyed upon the shipping of other nations, seized their cargos, and sold their sailors into slavery. Under the Continental Congress, the United States had paid tribute (amounting to $10 million under Washington and Adams) to allow American shipping to proceed unhindered.23 Jefferson's accession to the Presidency coincided with demands for higher payments and the impressment of a U.S. Navy frigate by the Dey of Algiers. Jefferson's accession to the Presidency coincided with demands for higher payments and the impressment of a U.S. Navy frigate by the Dey of Algiers.

Having long disliked paying the Barbary tribute, Jefferson decided to send the Navy to put an end to the insults to American shipping. In a meeting on May 15, 1801, the cabinet unanimously agreed that Jefferson should send a squadron to the Mediterranean as a show of force. No one in the cabinet, including Madison and Gallatin, believed that the President had to seek congressional permission to order the mission. The only legislative action was a statute enacted on the last day of the Adams administration, requiring that at least six existing frigates (American frigates at this time were the best in the world) be kept in "constant service" -- an effort to prevent Jefferson from reducing the navy to zero. Jefferson and his cabinet thought that the statute could be read to allow the President to send a "training mission" to the Mediterranean. The cabinet also agreed that the President had const.i.tutional authority to order offensive military operations, should a state of war already be in existence because of the hostile acts of the Barbary powers. "The Executive cannot put us in a state of war," Gallatin said, "but if we be put into that state either by the decree of Congress or of the other nation, the command and direction of the public force then belongs to the Executive."24 Jefferson and his advisors believed that the Const.i.tution only required Congress to declare war to undertake purely offensive operations against a nation with which the United States was at peace. As Abraham Sofaer has observed, Jefferson and his advisors a.s.sumed they had the authority for the expedition simply by virtue of Congress's creation of the navy forces that made it possible -- a position no different from that taken by President Washington in the Indian wars. Jefferson and his advisors believed that the Const.i.tution only required Congress to declare war to undertake purely offensive operations against a nation with which the United States was at peace. As Abraham Sofaer has observed, Jefferson and his advisors a.s.sumed they had the authority for the expedition simply by virtue of Congress's creation of the navy forces that made it possible -- a position no different from that taken by President Washington in the Indian wars.

Jefferson was clear on this in his orders to the naval commanders. The Secretary of the Navy ordered Commodore Richard Dale to proceed to the Mediterranean and, if he found that any of the Barbary states had declared war on the United States, to "chastise their insolence" by "sinking, burning, or destroying their ships & vessels wherever you shall find them."25 Dale could impose a blockade and take prisoners, going well beyond simply protecting American shipping from attack. Upon arriving and discovering that the Bashaw of Tripoli had declared war, Dale issued orders to his squadron to attack any and all Tripolitan vessels. Lieutenant Andrew Sterett, commanding the 12-gun schooner Dale could impose a blockade and take prisoners, going well beyond simply protecting American shipping from attack. Upon arriving and discovering that the Bashaw of Tripoli had declared war, Dale issued orders to his squadron to attack any and all Tripolitan vessels. Lieutenant Andrew Sterett, commanding the 12-gun schooner Enterprise Enterprise, encountered a 14-gun Tripolitan corsair on a resupply mission to Malta in August 1801. The Enterprise Enterprise fought for three hours and killed half the corsair's crew, cut down its masts, threw its guns overboard, and set it adrift. Sterett could not keep the prize, because he was on the outward leg of his resupply mission, but his actions produced broad approval in the United States and a joint resolution applauding the crew. fought for three hours and killed half the corsair's crew, cut down its masts, threw its guns overboard, and set it adrift. Sterett could not keep the prize, because he was on the outward leg of his resupply mission, but his actions produced broad approval in the United States and a joint resolution applauding the crew.26 The President portrayed his orders differently to Congress in December 1801. He claimed that he had not authorized offensive operations, that Sterett had acted in self-defense, and that the Enterprise Enterprise had released the corsair because Congress had not authorized offensive operations. "Unauthorized by the Const.i.tution, 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." had released the corsair because Congress had not authorized offensive operations. "Unauthorized by the Const.i.tution, 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."27 While some scholars have viewed Jefferson's words as presidential acceptance of Congress's control over war, Jefferson did not accurately represent Sterett's attack, the decision to release the captured warship, or the nature of the orders to Commodore Dale, nor did he reveal his thinking or that of his cabinet when those orders were cut. Jefferson followed by requesting that Congress authorize offensive operations. During the subsequent congressional debates, no one questioned the const.i.tutionality of Jefferson's orders to the Mediterranean squadron, and several Congressmen argued that the President had the power to order hostilities because of the existing state of war. Congress ultimately chose to delegate broad powers to Jefferson to take whatever military measures he thought necessary as long as war continued. While some scholars have viewed Jefferson's words as presidential acceptance of Congress's control over war, Jefferson did not accurately represent Sterett's attack, the decision to release the captured warship, or the nature of the orders to Commodore Dale, nor did he reveal his thinking or that of his cabinet when those orders were cut. Jefferson followed by requesting that Congress authorize offensive operations. During the subsequent congressional debates, no one questioned the const.i.tutionality of Jefferson's orders to the Mediterranean squadron, and several Congressmen argued that the President had the power to order hostilities because of the existing state of war. Congress ultimately chose to delegate broad powers to Jefferson to take whatever military measures he thought necessary as long as war continued.28 Jefferson's message to Congress presents an example of a President's rhetoric not matching his actions. He claimed a const.i.tutional limitation on presidential power that neither he nor his cabinet had previously raised, though one that ran in favor of Congress. He had sent American forces into a hostile area and ordered them to undertake offensive actions without any plausible congressional authorization. On the other hand, Jefferson did not act as aggressively as Presidents today. His orders to attack Tripoli responded to a declaration of war by the enemy. He could justify his orders on the ground that Congress had created the forces and that a state of war already existed, the position taken by the cabinet and supported by Hamilton in a newspaper essay. According to Hamilton, "[W]hen 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."29 Hamilton had things right as a matter of international law at the time, and most agree that he was correct on the Const.i.tution. Presidents should not have to wait to seek authorization from Congress when another nation has already attacked or declared war upon the United States. Hamilton had things right as a matter of international law at the time, and most agree that he was correct on the Const.i.tution. Presidents should not have to wait to seek authorization from Congress when another nation has already attacked or declared war upon the United States.

Efforts to solve the Barbary problem turned to another form of warfare, covert action. Shortly after the dispatch of the squadron to the Mediterranean, the American consul at Tripoli suggested that the United States help the brother of the Pasha to overthrow the government. In August 1802, Madison authorized American naval and diplomatic personnel to cooperate with the brother, and in May 1804 the cabinet voted to provide him with $20,000. The American consul at Tunis provided another $10,000, helped the pretender to the throne a.s.semble a mercenary army, and ordered the Navy to transport him covertly to Tripolitan territory. The brother captured one of Tripoli's major cities in 1805, forcing a peace treaty with the United States that freed American prisoners, granted privileges to U.S. shipping, and ended the war. While Jefferson's actions certainly fell within Congress's broad authorization to "cause to be done all such other acts of precaution or hostility as the state of war will justify, and may, in [the President's] opinion, require," the President chose not to inform Congress of these secret measures until six months after the peace treaty was signed. No one objected, and Congress even bestowed a tidy sum on the brother for his cooperation.30 Jefferson would set the precedent for future covert action against threats to national security, with Congress's main check remaining the power of the purse. Jefferson would set the precedent for future covert action against threats to national security, with Congress's main check remaining the power of the purse.

Jefferson acted with swiftness during another military confrontation, this time with Great Britain. On June 22, 1807, the British warship HMS Leopard Leopard stopped the smaller American frigate USS stopped the smaller American frigate USS Chesapeake Chesapeake as it was leaving Norfolk, Virginia. The as it was leaving Norfolk, Virginia. The Leopard Leopard was under orders to search for British deserters hiding on American vessels. When the was under orders to search for British deserters hiding on American vessels. When the Chesapeake Chesapeake's captain refused to allow a search, the Leopard Leopard fired on the unprepared ship, killing three and wounding 18, and then removed four alleged deserters. The attack provoked outrage throughout the country and prompted demands for war. Without consulting Congress, which was not in session, Jefferson ordered all American waters closed to British warships. He redirected funds for the nation's fortifications devoted to New York, Charleston, and New Orleans and ordered the purchase of significant amounts of military stores and ammunition, including materials to construct 100 gunboats. Jefferson also sent orders to James Monroe in London to demand reparations and punishment of the fired on the unprepared ship, killing three and wounding 18, and then removed four alleged deserters. The attack provoked outrage throughout the country and prompted demands for war. Without consulting Congress, which was not in session, Jefferson ordered all American waters closed to British warships. He redirected funds for the nation's fortifications devoted to New York, Charleston, and New Orleans and ordered the purchase of significant amounts of military stores and ammunition, including materials to construct 100 gunboats. Jefferson also sent orders to James Monroe in London to demand reparations and punishment of the Leopard Leopard's commander. When Congress convened in October, Jefferson did not claim that the purchases were legally authorized, but instead sought after-the-fact approval because the "emergencies facing us" justified his actions. Jefferson relied on the power to act in moments of crisis to defend the nation, even in areas like spending, which the Const.i.tution had specifically given to Congress. Congress agreed and voted overwhelmingly to appropriate the funds that Jefferson had already spent.31

THE LOUISIANA PURCHASE.

WHILE FULL OF daring exploits, war with the Barbary pirates was not the central concern of American national security policy. America's future depended on relations with Great Britain, France, and Spain, which held the key to neutrality and westward expansion. Spain controlled New Orleans, through which exports using the Mississippi had to pa.s.s. Without access to the Mississippi, transporting goods over land from Ohio to the East took longer than sailing from New York to London. The British Empire was America's primary trading partner, receiving about 50 percent of its exports, and the Royal Navy effectively controlled the Atlantic. France was also an important trading partner -- Americans had grown rich selling goods to the antagonists during the latest round of European wars -- and it controlled the Louisiana territory to the West.

Jefferson's purchase of Louisiana defused this hazardous situation. He avoided war with France and Spain and doubled the size of the nation. He made possible the fulfillment of Republican political economy and foreign policy: to conquer the territory to the West without war, open Western settlement by controlling the Mississippi, and maintain America's neutral status. The Louisiana Purchase created the possibility that Jefferson's "empire of liberty" would be continent-wide, but it required Jefferson to put aside his vision of strict const.i.tutional construction and adopt a broader vision of executive power, one that permitted the nation to take advantage of the great opportunities thrown its way.

While it was not the product of luck, the Louisiana Purchase must have seemed like the intervention of Fortune in the fate of the Americans. The retrocession of Louisiana back from Spain to France (France had lost the territory to Spain at the end of the Seven Years' War) gave Napoleon dreams of an American empire. An expedition to restore control in Santo Domingo, which had been taken over by a slave rebellion led by Toussaint L'Ouverture, failed. Another mission to send troops to Louisiana could not leave port due to winter ice, and in late 1802 Spanish officials closed the port of New Orleans to American shipping while they awaited the handover of the territory to France. Jefferson sent envoys to Paris to buy New Orleans and West Florida (which today comprises the portions of Mississippi and Alabama that lie along the Gulf of Mexico, along with parts of Florida and Louisiana), aided by a secret congressional appropriation of $2 million. Federalists proposed negotiating from a position of strength by invading New Orleans and West Florida first,32 but Jefferson privately had been willing to go even further, entertaining a possible alliance with the hated British against France to seize Louisiana. but Jefferson privately had been willing to go even further, entertaining a possible alliance with the hated British against France to seize Louisiana.

When American ministers arrived in Paris, they received a gift. Napoleon decided to sell not just New Orleans, but the entire Louisiana territory. The first amba.s.sador on the scene, Robert Livingston, did not believe the offer was genuine, but when the second envoy, James Monroe, arrived, they quickly decided to exceed their instructions and buy all of Louisiana for about $15 million. The Louisiana Purchase doubled the size of the United States, gave it permanent control of the Mississippi and New Orleans, and dislodged France and Spain as serious threats to American national security in the West. "This removes from us the greatest source of danger to our peace," Jefferson wrote to his son-in-law.33 Played differently, the United States could have been drawn into the Napoleonic wars, which would have proven disastrous, and found itself hemmed into the Eastern seaboard. Jefferson's reputation as one of America's greatest Presidents was sealed on the day that the Louisiana treaty was signed. Played differently, the United States could have been drawn into the Napoleonic wars, which would have proven disastrous, and found itself hemmed into the Eastern seaboard. Jefferson's reputation as one of America's greatest Presidents was sealed on the day that the Louisiana treaty was signed.

But in order to buy Louisiana, Jefferson had to change his vision of the Const.i.tution. Jefferson had believed that the Const.i.tution did not permit the acquisition of new territory or its incorporation into the Union as new states. The Const.i.tution has no express provision providing for the addition of territory, though Article IV, Section 3 gives Congress the power to "dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Some later argued that this clause a.s.sumes that new property could be added in the future, but as Gary Lawson and Guy Seidman have pointed out, this interpretation runs counter to the text of the clause and its placement in the Const.i.tution.34 The clause describes the power to make rules and dispose of property, but it does not empower the government to add new territory in the first place -- it could be read to apply only to the territory of the United States as it existed in 1789, such as the Northwest Territory. Even before he sent Monroe to negotiate for New Orleans, Jefferson had raised doubts before his cabinet. The clause describes the power to make rules and dispose of property, but it does not empower the government to add new territory in the first place -- it could be read to apply only to the territory of the United States as it existed in 1789, such as the Northwest Territory. Even before he sent Monroe to negotiate for New Orleans, Jefferson had raised doubts before his cabinet.

Jefferson also doubted whether new territory could become states. The Const.i.tution provides for the addition of new states, upon the approval of Congress, and it prohibits the formation of new states out of the borders of existing states without their consent. Jefferson apparently worried that this prohibition also applied to the creation of new states from the territory of existing states. His Attorney General, Levi Lincoln, agreed and advised that the boundaries of existing states be enlarged to include the Louisiana Purchase.

Jefferson and his cabinet sought refuge in a position that was "virtually indistinguishable" from Hamilton's arguments in the debates over the Neutrality Proclamation and the Jay Treaty. Gallatin argued: 1. The United States as a nation should have an inherent right to acquire territory.

2. Whenever that acquisition is by treaty, the same const.i.tuted authorities in whom the treaty-making power is vested have a const.i.tutional right to sanction the acquisition.

3. Whenever the territory has been acquired, Congress should have the power either of admitting into the Union as a new state, or of annexing to a State with the consent of that State, or of making regulations for the government of such territory.35 In other words, the federal government has powers that extend beyond those explicitly set out in the Const.i.tution, including the sovereign powers held by all other nations. Gallatin claimed that the treaty power vested the federal government with the ability to exercise these inherent national powers. This broad reading of the executive power allows the President and Senate together to exercise power that is nowhere set out in the Const.i.tution but must be deduced by examining the rights of other nations in their international affairs. As the primary force in treaty-making, this power would redound to the President's benefit. Gallatin's opinion concluded that the people had implicitly delegated the authority to acquire territory to the national government by vesting it with the powers to make war and treaties, and govern the territories.

This was strong drink for a man who believed that the Const.i.tution did not allow a national bank. Jefferson accepted Gallatin's reasoning, though he predicted that new territory would enter the Union as a matter of "expediency" rather than const.i.tutional principle. Perhaps he felt he was making only a small compromise when all that could be hoped for was New Orleans. When Jefferson learned that Livingston and Monroe had succeeded beyond his wildest dreams, the const.i.tutional doubts resurfaced. To John d.i.c.kinson, he admitted in August 1803 that "our confederation is certainly confined to the limits established by the revolution. The general government has no powers but such as the const.i.tution has given it; and it has not given it a power of holding foreign territory, and still less of incorporating it into the Union." He confessed that "an amendment to the Const.i.tution seems necessary for this."36 Jefferson did not limit himself to private letters to friends, but expressed his views to his close ally in the Senate, John Breckinridge of Kentucky. "The Executive in seizing the fugitive occurrence which so much advances the good of the country, have done an act beyond the Const.i.tution," Jefferson wrote in August. Jefferson did not limit himself to private letters to friends, but expressed his views to his close ally in the Senate, John Breckinridge of Kentucky. "The Executive in seizing the fugitive occurrence which so much advances the good of the country, have done an act beyond the Const.i.tution," Jefferson wrote in August.37 It was now up to Congress to support the unconst.i.tutional act. "The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it." Jefferson believed it was best to admit openly the violation of the Const.i.tution and seek popular support, which he believed was healthier for the const.i.tutional system. "We shall not be disavowed by the nation," he predicted, "and their act of indemnity will confirm and not weaken the Const.i.tution, by more strongly marking out its lines." It was now up to Congress to support the unconst.i.tutional act. "The Legislature in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify & pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it." Jefferson believed it was best to admit openly the violation of the Const.i.tution and seek popular support, which he believed was healthier for the const.i.tutional system. "We shall not be disavowed by the nation," he predicted, "and their act of indemnity will confirm and not weaken the Const.i.tution, by more strongly marking out its lines."

Jefferson even personally drafted at least two const.i.tutional amendments adding Louisiana, but events forced him from the luxury of his strict-constructionist beliefs. Shortly after he wrote to d.i.c.kinson and Breckinridge, Jefferson received a dispatch from Livingston in Paris that Napoleon was having seller's remorse. Livingston reported that Napoleon would seize any delay or request for changes as an opportunity to renounce the agreement. Jefferson worried that the delay of a const.i.tutional amendment would give France the opening it needed, though both Madison and Gallatin thought France would not back out, and no one in the cabinet thought a const.i.tutional amendment was necessary. Jefferson sent letters to Congress asking that const.i.tutional objections to the treaty be dropped, and that "nothing must be said on that subject which may give a pretext for retracting; but that we should do sub silentio what shall be found necessary."38 Jefferson's most remarkable exchange came with Senator Wilson Cary Nicholas. Nicholas warned that any public statement by Jefferson against the const.i.tutionality of the Purchase might sink the treaty in the Senate. Jefferson agreed that "whatever Congress shall think it necessary to do, should be done with as little debate as possible, & particularly so far as respects the const.i.tutional difficulty." Still, he could not resist the opportunity to restate his belief that the Const.i.tution did not envision the addition of new states from territory not already part of the nation in 1789. The opposite construction, advanced by his cabinet and by Nicholas, too, would allow the United States to add "England, Ireland, Holland, [etc.] into it." Broad rules of interpretation, Jefferson warned, would "make our powers boundless" and would render the Const.i.tution "a blank paper by construction." Jefferson claimed that when faced with a choice between two readings of the Const.i.tution, "the one safe, the other dangerous, the one precise, the other indefinite," he would choose the "safe & precise" and instead "ask an enlargement of power from the nation where it is found necessary."39 Jefferson had claimed authority for the President to act outside the Const.i.tution itself when circ.u.mstances demanded it. If he had interpreted the powers of the executive narrowly, he would have put the Louisiana Purchase in danger. But it was Jefferson's strict constructionist views that created this dilemma in the first place. His reading of the Const.i.tution seems mistaken and has never been the view of any of the three branches of government since. Article IV, Section 3 gives Congress the authority to admit new states and then adds the qualifier that when new states are formed from existing states, those states must consent. The broader power, without that qualification, must apply to something (otherwise, why not just make all admissions subject to state consent), and that something must be the creation of states out of new territory. As Lawson and Seidman argue, the Admissions Clause, as it is known, merely declares that "new states may be admitted by the Congress into this Union." Second, Article II's vesting of the executive power in the President contains a power to address national emergencies and crises. Jefferson could have read the executive power to include the authority to acquire the Louisiana Territory because of the threat to the national security if it had remained in the hands of other nations.

Instead, Jefferson chose to keep both Louisiana and his const.i.tutional faith by turning to the prerogative. Jefferson's political dexterity made him flexible enough to take advantage of this great national opportunity, even to the point of adopting a vision of presidential powers potentially broader, in some ways, than that of Hamilton. Washington had established the legitimacy of the national government by keeping his energetic executive within its const.i.tutional bounds. Hamilton had given theoretical punch to Washington's actions by arguing that the Const.i.tution had to include the power to address every national emergency, and that this power would naturally reside in the executive. Jefferson, however, approached the Presidency more in keeping with Locke's theory of the prerogative. In his letter to Breckinridge, Jefferson had bypa.s.sed const.i.tutional objections to the Louisiana Purchase by comparing his position to that of a guardian who acts beyond his authority but in the best interests of his ward. He had to seize the opportunity "which so much advances the good of the country." In response to the firing on the Chesapeake Chesapeake, Jefferson again acted beyond his const.i.tutional powers. In both cases, Jefferson claimed that unforeseen circ.u.mstances, produced either by necessity or by opportunity, required him to exceed his legal powers to protect the greater good. Following Locke, Jefferson looked for ratification for his ultra vires ultra vires decisions -- "an indemnity," as he wrote to Breckinridge -- from the people through their representatives in Congress. decisions -- "an indemnity," as he wrote to Breckinridge -- from the people through their representatives in Congress.40 Jefferson explained his embrace of the prerogative more completely after he left office. In an 1810 letter, he addressed the question of whether "circ.u.mstances do not sometimes, occur, which make it a duty in officers of high trust, to a.s.sume authorities beyond the law."41Jefferson thought the question was "easy" in principle, though could be "embarra.s.sing in practice."

A strict observance of the written laws is doubtless one one of the high duties of a good citizen, but it is not of the high duties of a good citizen, but it is not the highest the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

Jefferson followed with examples of military necessity: Washington destroying private property during the Revolutionary War to gain a tactical advantage; Jefferson himself as governor of Virginia seizing men and material to defend the state from the British. Even more interesting was Jefferson's use of the prerogative to defend several of his decisions as President. One was the possibility of purchasing the Floridas, even though Congress had made no appropriation -- the implicit reference to Louisiana was obvious. "Ought the Executive, in that case ... to have secured the good to his country, and to have trusted to their justice for their transgression of the law?" Jefferson's answer was yes. Another example was the purchase of military supplies after the attack on the Chesapeake Chesapeake. A third was General Wilkinson's arrest of the Burr conspirators without trial or right of habeas corpus. In all of these situations, Jefferson believed, "a law of necessity and self-preservation" was at stake, and that law "rendered the salus populi salus populi supreme over the written law." supreme over the written law."

Acting beyond the written Const.i.tution was not for the weak of