An introduction to basic techniques of constitutional interpretation.
Following Washington's Lead, Part 2
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来自 Yale University 的课程
美国的不成文宪法
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Following Washington's Lead
Undoubtedly, the figure who looms largest in U.S. political history is George Washington. His actions before, during, and after the Presidency set precedents for the executive office which are still observed today. Prof. Amar will explain why Article II of the Constitution was custom written for our first president.
与讲师见面
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
[BLANK_AUDIO]
Welcome back.
We've been talking about the role that George Washington played
in establishing the basic contours of executive power in America.
On issue after issue the issue isn't simply,
the question isn't simply, what does the text say?
because the text is often ambiguous, the text of Article Two.
It's, it's, it's cryptic, it's, it's enigmatic.
So the question isn't just what the text says, but what George Washington did.
Now, I don't want you to think that that meant
that Washington could do what, sort of, whatever he wanted.
We're talking about areas where the text is ambiguous.
The text isn't so clear on who has the power to recognize a foreign regime.
Who in America can say, well now we
recognize the, the, the Libyan rebels or the
Syrian rebels rather than the government that we used to recognize in these places.
The text isn't so clear.
Presidents can make an argument that
they're basically the only ones around 24/7/365.
You can have foreign coups and insurrections
and changes of government at any time.
And the president structurally is going to be the one who
is, sort of, best able to, to address the situation.
And that's not a bad argument, but the decisive point isn't
that structural point.
It isn't even the textual point that, that presidents have the
power to receive ambassadors, because that text can be read different ways.
I think the key point is that the precedent was established early on.
That George Washington recognized the French Revolutionaries.
That actually was most decisive, and the text was ambiguous.
And Washington's actions were accepted by the other branches.
The other branches didn't
push back and say, no you don't have that power.
So too, the text is unclear about just how much the presidents have to tell
Senates in advance before they send for an envoys or negotiate treaties.
You could, I suppose, read the text to
say, well, since the Senate has to agree at
the end of the day to the treaty before it can be at the Supreme level end.
It has to be told everything
in advance about what our negotiating strategy is going to be.
On the other hand text doesn't say that, and maybe you, some negotiating
opportunities are going to arise when the Senate isn't even in session.
And, and and you don't want all the
secrets about your, your negotiating position to spill out
before the negotiations have happened, and the Senate can
be a leaky body compared to a unitary executive.
So, the arguments about the text of
the Constitution's structure kind of go both ways.
The decisive point is, once again, the practice that Washington set, the
precedent set by the, the first precedence set by the first President.
That he actually engaged in secret envoys and secret negotiations.
And then brought stuff
back for the Senate when he was ready for the Senate to, to approve it.
because without the Senate's approval it's not the supreme law of the land.
And, not only is the text and the structure somewhat ambiguous
on this, but actually the other branches, acquiesced in what Washington did.
So, that becomes a precedent that glosses
the text, that, that, that helps us resolve
what otherwise would be an ambiguity. now, here's an example where most of what
Washington did was pretty much accepted by the other branches, but not entirely.
After the French Revolution France, revolutionary France
gets into a war with Britain. France initially wants
the United States to support it.
And France says, listen, you signed a treaty with us
when you were colonies trying to break away from England.
And the treaty says, you've got to support us against England.
[COUGH] Now who gets to make that call?
Washington says, [COUGH], excuse me, that he will make that call.
He interprets the treaty to not oblige the United States, to basically
become France's war partner against England.
This would be bad for the national interest, and
the treaty, as he reads it, doesn't require it.
And he gets, and he makes a proclamation of America's foreign policy.
He gets up and he basically tells America and the world that I speaking
on behalf of the United States, do not believe that we have any treaty obligation
to join the French side.
And, on the contrary, I, speaking on behalf of
the president of, speaking on behalf of the United States.
Say, America will remain neutral in this [COUGH] war between France and, and Spain.
We're not going to side with ei-, with either
party, this is a, his famous neutrality proclamation.
And most of it, it, and again the
Constitution doesn't say in so many words, that president's
can proclaim foreign policy, that president's
are the, the organ of communication.
The basic body in American that communicates with a foreign heads
of state, it doesn't say that quite in so many words.
But that is our understanding today based on Washington's Neutrality Proclamation.
But there's one aspect of that Neutrality Proclamation where Washington did go too
far and there was push back and he went too far,
because the text of the Constitution pretty clearly said to the contrary.
And, so this unwritten constitution of, of presidential precedents
actually does yield if the text is absolutely clear.
It simply this, these Washingtonian precedents prevail where
the text is ambiguous, so the structure's unclear.
Here's where Washington went too far. He seemed to suggest
in his Neutrality Proclamation, that if any
American started aiding the French against the British,
or the British against the French, that,
that American would be subject to criminal prosecution.
And at least the implication was Federal criminal prosecution.
Just because he said so, he said because we're
neutral, basically any American who, who basically sides with one
belligerent against the other is committing a Federal crime.
Well, not so fast.
Because the Constitution doesn't give the president, under any stretch of,
of, of the text the power to, to create criminal law.
Only Congress can create criminal law.
And that Congress is going to have to pass a Federal criminal statute with
the, with the House and the Senate.
And it's going to have to specify what the elements of the offense
are in advance and prescribe a court that will hear the case.
And the punishment that will attach for the violation
of the criminal law whose elements are being specified.
Only Congress can pass such a law.
Presidents can't unilaterally, by decree, by
fiat, by proclamation create Federal criminal law.
And so the Supreme Court
said early on actually, in a case called Hudson
and Good-, Goodwin after Washington had left the scene.
But the Supreme Court made clear actually.
No, here are the text of the Constitution and the structure are really pretty clear.
And we're going to talk about the structure of the
Constitution in criminal law in a later set of lectures.
It's really clear that no one should go to prison just because
the President of the United States think they should go to prison.
The House of Representatives and the Senate
have to be involved as well.
They have to sign off on Federal criminal law.
[COUGH]
So, now having covered a few foreign policy
examples, and, and basically tried to establish the thought.
That when the text and the structure of the
Constitution are ambiguous, when it comes to executive power,
the key thing is what Washington did, with the approval and the
acquiescence of the other branches of
government and more general, the American people.
That's the basic thought.
And having given you now some examples from foreign policy, let me
pick one last one from domestic policy and it's about the Cabinet.
So we have these Cabinet secretaries, and they're nominated.
They're in the Constitution.
They're called Heads of Departments.
And the Constitution says that the, these heads of
departments will be nominated by the president, and they will
hold their office when the Senate advises and consents to
the nomination, they have to be confirmed by the Senate.
It has to give its advice and consent.
So far, so good.
And that's how cab-, Cabinet officers actually are
appointed and if there's a vacancy that arises
during a recess, the President can sort of fill the recess temporarily.
That's because he's in session 24/7 365 and the
Senate might not be in session, so far, so good.
But what happens if the president loses
confidence in one of these Cabinet officers?
He appointed the person, but he now thinks the person is not doing a good job.
Or [COUGH] maybe he inherited,
so to speak, the Cabinet officer from a previous administration.
Now the President's John Adams.
He has all these Cabinet officers that
Washington appointed but he, maybe, wants someone different.
What does the Constitution say about the power,
not of appointment but, so to speak, of disappointment?
Of firing not hiring. And the answer is, text isn't so clear.
The text can be
read to say, well since the Senate has to agree to the hiring
of a Cabinet officer, the Senate also has to agree to the firing.
It takes two to make a Cabinet officer.
It should take two to unmake.
And you could read the text that way.
And in fact the Federalist Number 77 which was written
by Alexander Hamilton, seemed to read the text that way.
And that's what some Americans may very
well have thought during the ratification process.
But it's absolutely clear today that that is not the rule.
Even though the text could be read
that way, ratification history might suggest that.
That is not the rule today.
Everyone accepts left, right, and center that
presidents can fire Cabinet officers at will.
So what's up with that?
You know, why is it so clear to everyone today when this text isn't at all clear.
And, and maybe the most interesting piece of historical
evidence during the ratification period, a Federalist paper
on this very topic, looks the other way.
Says the, the opposite.
That the Senate will be involved in the firing process.
So why is it so clear that the Senate isn't involved?
Why is it so clear, in other words, that
when Barack Obama becomes president, it's clear from day one.
That he can have his own treasury secretary.
Remember Henry Paulson
was George W Bush's secretary, treasury secretary.
But everyone understands that as soon as Obama takes office he can fire Paulson and
put and, and, and and nominate his own
guy Geithner just because he likes Geithner better.
Doesn't have to say anything else. I don't like Paulson.
I like someone else. Why is that so clear?
By the way, it's not clear that on day one Obama can get rid of
Ben Bernanke as head of the Federal Reserve and just put in his own guy.
If fact, it's pretty clear that he can't just tell Bernanke
to take a hike on day one, but he can tell Paulson.
Now where does the Constitution say that Cabinet officers are different than
heads of the Fed and that presidents can fire Cabinet officers at will?
Where does? Professor, where does it say that here?
And the answer is it doesn't say it clearly here, and
yet these rules are clear today, and they're clear because of early
precedence set by our earliest President George Washington.
In a thing called the Decision of 1789, in a series of enactments.
The Congress of the United States, the first Congress, creates
these early Cabinet secretaries, and creates them with language in
the statute, signed by George Washington conceding that Cabinet officials
serve at the president's pleasure. That they can be fired at will.
So the earliest Congress basically
acquiesces in George Washington's insistence.
Look, these guys, he says, are here to be my helpers.
The executive power is vested in me. By the first sentence of Article Two.
I'm supposed to take
care that the laws be faithfully executed. I'm supposed to superintend everything.
These guys are my lieutenants, as it were, and I
have to have confidence in them, and I can't have
confidence in them if I can't basically fire them at
will [COUGH] if I think they're doing a bad job.
And Congress agrees, and Congress in the, this
series of statutes, creates the first Cabinet secretaries.
It creates the secretary
of the treasury.
And who's the first secretary of the treasury?
It's Alexander Hamilton, and Hamilton, who had earlier written the Federalist
77, saying, I think, actually, presidents can't fire Cabinet officers at will.
They're going to need the Senate's consent.
That's what he said during the ratification process.
But, in 1789, he actually changes his tune, and says, I
now understand that Cabinet officers answer to the president, and directly
to the president, and he gets to fire them at will.
So, he has a change of heart.
Congress actually affirms this new Hamiltonian
position that the president decides unilaterally.
And thus, basically, it has been our our system ever since.
Andrew Johnson got himself in some trouble by, by firing a Cabinet officer at will.
But the, the verdict of history has been actually
that no, pre-, that Johnson on that was right.
Presidents have an absolute right to fire Cabinet officers
whenever they, they lose confidence in their Cabinet officers.
John Adams fired Timothy Pickering as Secretary of State at will.
and, and so, Obama can fire tre-,
treasury secretaries at will, or secretaries of state at will.
because, George Washington asserted that power early on and
that was baked into the so called Decision of 1789.
And and in the process of creating these Cabinet officers who really answer to the
president, we see the emergence of an institution
that's not really very clear in the written
text, but is kind of part of a unwritten practice, the very idea of a cabinet.
That the president has a bunch of advisers that he will consult.
And because when you read the written Constitution you
might think the Senate is the advice and consent body.
And the president's always going to be going over and, and
getting the Senates, two bits, getting their advice on things.
That's not how it has worked.
The president's have basically consulted
their Cabinets and not the Senate and one of the reasons is
because they hand-pick their Cabinet officers and can fire them at will.
Washington himself will muscle out of, of office Edmond
Randolph who succeeds Thomas Jefferson as Secretary of State.
Washington eventually loses confidence in Randolph and basically muscles him out.
John Adams will muscle out will fire Timothy Pickering.
and,
and as I said that has, has been our tradition precisely
because presidents actually pick Cabinet officers and can fire them at will.
They have some confidence in them and they've
come to confide in them more than senators.
in, in part because presidents can't fire senators at will and if a
senator leaks a secret, not a lot a president can, sort of, do.
If a Cabinet officer doesn't keep a secret or, or
misbehaves Washington can fire him just like that.
And he's absolutely ready to do so when it comes to Edmund Randolph.
so, lots of our practices are established not because of what the text
says when it comes to the presidency, but because of what Washington did.
I'm going to leave you with a little discussion of
a little interpretation of the picture for this chapter.
The illustration, remember all the chapters have illustrations and this is
based this, this set of lectures this one and the predecessor.
On chapter eight of the book America's Unwritten Constitution, and that
chapter opens with this picture. This is of George Washington's first
inaugural in se-, in 1789. April 30th of 1789, to be specific.
And I just want you to notice a couple of things.
Two of the people who have eventually been in Washington's Cabinet,
actually are here.
Here's Alexander Hamilton on one side and Henry Knox on the other.
Hamilton will become Secretary of the Treasury and Knox, Secretary of War.
But note how even before he's taken his oath of
office, Washington is in effect,
establishing precedence that others will follow.
He's swearing his oath of office on the Bible.
The text doesn't say anything about Bibles.
And Bibles are not at all required.
But what Washington establishes is that Bibles are
permissible, and many other presidents, most of them,
in fact, have followed Washington's example and have
sworn their oaths of office on the Bible.
Even though nothing in the Constitution so requires.
and, in fact, some presidents have gone so far as to want to swear
their oaths of office on the very same copy of the Bible that that Washington
himself used.
Washington is showing up here in civilian garb.
He has a ceremonial sword but he's not dressed in military uniform.
He's trying to establish a kind of principle of civilian supremacy.
And so later presidents including generals will actually wear
civil garb not military uniforms at their inaugural ceremonies.
Washington, in other words, is
establishing all sorts rules and principles
but also even just kind of matters of kind of etiquette.
President's today, as a general matter, they might give their
states of the union address in, in con-, the Senate.
But they don't, basically, go every day, or regularly, to the Senate.
And that's because Washington tried to do that early on.
It didn't work. It was a disaster.
And he actually left in a huff, sort of.
And according to one report, he, he muttered as he
was leaving, I'll be damned if I ever go there again.
[LAUGH] And he didn't.
So in all sorts of ways Washington, as I said, even before he has taken
the reigns of power into his hands, is establishing important precedence.
here, at least the permissibly, as a matter
of personal religious choice of introducing a religious element
into, into the ceremony.
The Bible the importance of that he's embodying in,
the very way he's just dressed and carrying himself.
The importance of civilian supremacy.
Okay, so, we've just been covering the presidency
and some of the unwritten rules about the presidency.
In our next pair of lectures we're going to talk
about the unwritten rules governing some of the other institutions
of power in the Federal Government, the House,
the Senate, the judiciary and the administrative agencies.
So, stay tuned.
[MUSIC]
