The Attorney General's first separation of powers opinion.

• Author: Dellinger, Walter
• Position: Includes updated text of Attorney General William Bradford's opinion

The prominence of judicial review in the history of constitutional interpretation in this republic often overshadows the essential and ongoing role of other institutions in the interpretation of the Constitution of the United States. The finality of Supreme Court decisions (barring reversal by the Court or by amendment) plays a major--and appropriate--role in focusing our attention on the courts' decisions, but other factors also shape our perceptions. It is, at least superficially,(1) easy to trace the course of Constitutional interpretation in the reported cases, and there is an abundance of secondary literature. The history of congressional and presidential interpretation, in contrast, is much less well-known.(2) It is, furthermore, intrinsically more difficult to grasp. Non-judicial interpretations of the Constitution are often implicit rather than overt, embedded in political decisions that may include no express discussion of constitutional issues at all. The collective nature of congressional action and the often-confidential character of executive branch deliberations add to the difficulties of working out the history of non-judicial interpretation.(3)

At times, however, the problem is even more basic: the original materials necessary for understanding the development of executive or congressional interpretation may simply be generally unavailable. A significant number of early opinions of the Attorneys General, for example, never were collected in the official Opinions of the Attorneys General, the first volume of which was published in 1852,(4) and remain in manuscript or printed only in out of print and inaccurate nineteenth-century books on other subjects. This is true of what was, to our knowledge, the most important opinion written by an Attorney General during the 1790s on an issue of separation of powers. What follows, after a brief introduction to the context of that opinion, is a modern edition of that opinion, written by Attorney General William Bradford in 1794.(5)

1. INTRODUCTION

   From the beginning of the Union, one of the most important modes of interaction between the President and Congress has been the executive's submission of information for legislative consideration. Article II of the Constitution requires that the President "from time to time give to the Congress Information of the State of the Union,"(6) and the early Presidents evidently did not regard that duty as satisfied by the ritual performance of an annual address.(7) However, "Congress began almost immediately to call for information not voluntarily submitted,"(8) and in short order the question arose of whether the President has some degree of discretion in responding to such requests. The general propriety of legislative requests for information and documents was never in doubt: in April 1792, George Washington's cabinet unanimously advised him that the House of Representatives was entitled to request the transmission of documents in the executive's possession in order to carry out its functions.(9) At the same time, however, the cabinet was agreed that the President had the duty and the authority not to transmit any documents, "the disclosure of which would injure the public" in his opinion.(10)

   It is unclear whether, and to what extent, the cabinet's conclusion that the President could refuse to disclose information in order to protect the public interest was communicated to the House. Although Washington and his advisors did not think that the public interest required withholding any of the requested documents, no response was made until the House limited the request to documents "of a public nature," at which point the President complied.(11) Two years later, however, Washington expressly exercised the authority to limit the disclosure of information to a house of Congress in the public interest.

   On January 24, 1794, the Senate passed a resolution requesting the President "to lay before the Senate the correspondences which have been had between the Minister of the United States at the Republic of France and said Republic, and between said Minister and the office of Secretary of State."(12) The minister in question was the flamboyant Gouverneur Morris, whose patent dislike of the Revolutionary regime in France had enraged that government as well as its American sympathizers; some of the resolution's supporters no doubt saw the request as a means of embarrassing the Federalist administration in the person of one of its most partisan officers. After reviewing his files, Secretary of State Edmund...