Competing conceptions of the separation of powers: Washington's request for an advisory opinion in the crisis of 1793.

Author:Starr, Nicholas C.
Position:The Historical Presidency - Report

The summer of 1793 saw the United States involved in its first foreign policy crisis under the new Constitution. Revolutionary France was at war with Great Britain and the rest of Europe, and on April 22, 1793, President George Washington issued his Neutrality Proclamation. American neutrality, however, was complicated by the Treaty of Amity and Commerce, signed with France in 1778. In order to resolve a number of pressing issues that threatened American neutrality, President Washington applied to the Supreme Court for an advisory opinion concerning American obligations to the warring powers. This step was not as strange as it may appear today. Formal advisory opinions issued by courts had a long and rich history in England and had played a role in the early American experience as well. (1) Despite this well-established precedent, John Jay's Supreme Court refused Washington's request.

Although Washington's request and the Court's refusal bear directly on fundamental issues regarding the purpose and practice of the separation of powers and the relation between a republican government and the citizenry it serves, they have not received more than passing attention from political scientists. (2) Overshadowed by the apparently more important events of the same summer, such as Washington's proclamation and the subsequent Pacificus-Helvidius debates, (3) Washington's request and the Court's refusal have presumably looked insignificant in comparison.

Despite its neglect by political scientists, the Court's refusal has long been of interest to legal scholars. The traditional legal interpretation of the episode holds that the Court's decision set the precedent for the absolute ban on advisory opinions and hence served to define more clearly the proper jurisdiction of the courts under the separation of powers doctrine (Story 1851, [section] 1571, 362 and 362n2; Tribe 1978, 57; see also Frankfurter 1924, 1007). The recent work of the legal scholars William Casto and Stewart Jay, however, has persuasively challenged this interpretation by arguing that the Court's decision was not based on accepted and shared constitutional principles requiring the repudiation of executive-judicial cooperation, in general, and of advisory opinions, in particular. The Court was instead guided by considerations of prudence, the most important of which was to avoid setting a precedent by which the executive was expected to consult the Supreme Court on issues of difficult legal interpretation regarding either treaties or the law of nations (Casto 2002, esp. 195; Holt 2000; Jay 1997, 153-70).

By situating the events within a political rather than a merely legal context, this scholarship invites a reexamination of the entire episode by political scientists. In this article, I undertake this reexamination and show that the Court's refusal, properly understood, sheds new light on the nature, rationale, and problems of executive-judicial relations, and draws attention to the impact of shifting configurations of this relationship for the practice of republican politics more generally. In the first section of the article, I begin from the political purpose of Washington's request for an advisory opinion and argue that, at the deepest level, it issued from a subterranean but powerful link between judicial and executive power, a link that suggested an alliance between the two branches. This alliance was both advocated and practiced by President Washington and Chief Justice Jay, and consisted in the cooperation and coordination of the executive and judiciary for the sake of unified action according to shared policies. This practice, in turn, had implications for the manner in which the federal government interacted with or addressed the citizenry.

In the second section of the article, I argue that the Court's refusal to advise Washington highlights the political considerations that prompted it to suspend judicial--executive cooperation and thus reveals an emerging recognition on the part of John Jay that the efficient operation of the federal government required, in addition to the institutional separation of powers, a political separation of the executive branch from the judiciary. The reasons underlying the need for this political separation, however, suggest that the way that the courts fit into the separation of powers scheme is more complicated than generally thought.

Finally, by considering the immediate aftermath of the Court's refusal to advise Washington, I show that the political separation of the two departments had the consequence of forcing the executive into a more active engagement with the people. This engagement with the people is a sign that the popularizing of presidential politics is at least in part a consequence of institutional relationships between the branches of government. The practices that constitute a political culture, and especially those that constitute the manner in which a government interacts with its people, cannot be neatly separated from the formal and informal relations that define the internal structure of that government.

Washington's Request for an Advisory Opinion and the Separation of Powers

Washington made his request for an advisory opinion in the midst of the public controversy that erupted over the Neutrality Proclamation and his administration's neutrality policies. The controversy, and the attendant political problems facing the Washington administration, stemmed from the enthusiasm for the French cause generated by the European war. As Chief Justice John Marshall later recalled, news of the war between Britain and France "restored full vivacity to a flame, which a peace of ten years had not been able to extinguish. A great majority of the American people deemed it criminal to remain unconcerned spectators of a conflict between their ancient enemy and republican France" (quoted in Casto 2001, 614). Indeed, the public ardor was so great that even Jefferson worried whether it would be possible to "repress the spirit of the people within the limits of a fair neutrality" (Jefferson 1992-95 [hereafter PTJ], 25:661).

These problems were exacerbated by the actions of the French minister, Edmund Charles Genet. Not only did Genet disagree with the administration's fledgling neutrality policy, but he refused, as Harry Ammon (1973, 66-7) has noted, to accede to the administration's decision that French privateers could not outfit in American ports (PTJ, 26:40). Regarding this rule as an abrogation of one of the two most important clauses of the Treaty of Amity and Commerce, (4) Genet grew increasingly frustrated and by mid-summer was openly defying administration policy. (5) Buoyed by the enthusiastic public reception he had received on his overland journey from Charleston to Philadelphia (Ammon 1973, 52-7; Jay 1997, 123), by challenges in the American press to Washington's policies, and by the outcry over the prosecution of Gideon Henfield under the terms of the Neutrality Proclamation (Ammon 1973, 78-9; Schmitt 2009, 59; Young 2011, 445-6,452), Genet boldly threatened "to appeal from the President to the people" should Washington fail to change his policies (Casto 2002, 178; PTJ, 26:466). In an effort to overturn the administration's stated policy, Genet signaled his willingness to take his grievances to an American public he regarded as emphatically pro-French.

Deeply alarmed by the news of the French minister's threat (PTJ, 26:481) and by the mounting British concern over Americans serving on French privateers, Washington determined to seek help. The day after he learned of Genet's threat, the cabinet notified Genet and the British minister that "the Executive of the US., desirous of having done what shall be strictly conformeable [sic] to the treaties of the US. and the laws respecting the several representations. . . on the subject of vessels arming or arriving in our ports, and of prizes, has determined to refer the questions arising herein to persons learned in the laws" (PTJ, 26:487).

Although this statement seems to suggest that Washington was primarily seeking legal counsel, and although the ongoing disagreement between Jefferson and Hamilton over the character of American neutrality surely hindered the administration's efforts to finalize its neutrality policy, the administration's solicitation of the Court in fact had more to do with seeking political support for its policies than with any legal impasse (Casto 1995, 78; 2002, 182). For one, the administration had already resolved the most important issues related to its neutrality policy. To be sure, several questions did remain undecided, most importantly whether to make restitution of British ships taken by French privateers (Hamilton 1969 [hereafter PAH], 14:454 editor's note). But the fact that the first of the 29 questions that were to be submitted to the justices dealt with whether privateers could be fitted out in American ports (PTJ, 26:534) does not prove that the administration was undecided on this particular issue or that it was open to changing its policy. More likely, the administration hoped the Court's concurrence would help create an image of American political consensus around the policies already adopted (Casto 1995, 78).

More decisive still is the evidence provided by the letter that Secretary of State Jefferson wrote to the justices on July 18. Rather than submit the administration's questions to the justices immediately, Jefferson posed instead the preliminary question of "Whether the public may, with propriety, be availed of [the justices'] advice on these questions?" (PTJ, 26:520, emphasis added) Only if this question could be answered in the affirmative, Jefferson continued, would the specific questions be presented to the justices. In addition to the letter's frank admission that the administration sought the judges' opinion at least in part because their "authority" would "ensure the respect of all...

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