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Pacificus (Hamilton) and Helvidius (Madison)

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David Smailes

on 20 September 2018

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Transcript of Pacificus (Hamilton) and Helvidius (Madison)

Pacificus (Hamilton) and Helvidius (Madison)
debate
Hamilton (Pacificus) writes in favor of the Proclamation of Neutrality
Four objections:

1. The Proclamation was without authority
2. It was contrary to our treaties with France
3. It was contrary to the gratitude we should be showing to France
4. It was "out of time" and unnecessary
1. The Proclamation was without authority

Hamilton: all the Proclamation does is notify all parties involved of the state of neutrality and to warn its own citizens not to violate that condition
Both Hamilton and Madison will agree that the national government should manage the affairs of the country with foreign nations

and both agree that a Proclamation is part of that - a "usual and proper measure."
Hamilton says not the legislature:
it does not conduct foreign policy with other nations
nor is it charged with making or interpreting treaties
And not the judiciary:

they decide litigation in cases and can't interpret treaties outside of this function.

"This position is too plain to need being insisted upon."
Thus it must fall to the Executive:
it is the instrument by which we communicate with other nations
it interprets treaties
it executes the law (and a treaty is a law)
it commands the "public force" (military)

"This view of the subject is..natural and obvious.."
Hamilton could have rested his argument there - he could have therefore concluded Washington is the person to issue the proclamation.

Why doesn't he?
Instead, Hamilton turns to a discussion of the Constitution and the power given to POTUS in Article II.
He begins by noting the Constitution grants POTUS "executive power"

Article II begins with "The executive Power shall be vested in a President ofthe United States ofAmerica."
Hamilton argues the rest of Article II goes on to "designate cases" of executive power:

the role of Commander-in-Chief
making treaties with the advice of the Senate
receiving ambassadors
taking care "that the laws are faithfully executed"
None of those cases removes "executive power" - instead, they express qualifications or elaborations to that power

We can't expect the Founders to have listed ALL executive power, he argues
How is saying "The Executive power shall be vested in a president...."

different from saying

"All legislative power herein granted...." goes to the legislature?
Enumerated powers in Article II regulate and specify the exercise of "Executive Power"

- leaving all the other powers to flow from that "general grant" of Executive power
But if issuing a Proclamation is included in "executive power," then doesn't this interfere with the legislature's power to declare war?

After all, this power includes deciding whether a treaty obligates a country to go to war...
Hamilton says no - if Congress has the power to declare war, POTUS has the power to preserve peace until war is declared, and should do so by interpreting treaties and laws accordingly ("take care that the laws are faithfully executed")
In this area, Hamilton argues, the two branches have "concurrent" power - they both exercise authority in the same area.

Congress has the power to declare war, but POTUS has the power to make decisions which may create conditions which lead the Congress to that decision.
In the end, POTUS is the chief enforcer, and therefore interpreter, of the law, and must "take care that the laws are faithfully executed" (which he could have done without his discussion of "executive power")

Therefore interpreting the treaty can include declaring our neutrality in the conflict

This isn't a new law, but is merely proclaiming the existing state of things.
Declaring war is clearly a LEGISLATIVE power - the Constitution leaves no doubt about this
Making treaties is a joint power, but does not mix executive and legislative functions - in other words, it isn't a "concurrent" power

Treaties are, in fact, another form of law by nature
And while the Constitution does grant POTUS certain powers, they don't settle the argument:
So where does the idea that these are sources of power come from?
Jefferson wasn't especially concerned about the Proclamation itself - he was much more angry about the broad claim of executive power.
2. The Proclamation is contrary to our treaties with France

Hamilton:
we'll still perform our treaty obligations to France if they don't violate neutrality
but we can't provide help ("succours or favors") to a power at war, and previous treaties do not have "particular reference to the existing war."
so we are not bound to carry out any part of the Treaty with France that would make us party to the war (11th Article)
So should POTUS be the one to issue a proclamation as part of the office's "constitutional authority and duty"?
Therefore "the EXECUTIVE POWER of the Nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument."
So the Senate does participate in appointing officers and making treaties, and Congress does have the power to "declare war and grant letters of marque and reprisal."

But "with these exceptions the EXECUTIVE POWER is completely lodged in the President."
So interpreting a treaty is part of enforcing the law, so long as that doesn't change our condition of neutrality.
War has broken out between England and France, and the French feel the United States should be fighting on their side.
As a consequence, Washington issues a Proclamation of Neutrality for the United States in the war between France and England on April 22, 1793.
True, when a president makes decisions about interpreting treaties or recognizing the governments of other nations (and treaty obligations that may follow) it may encroach on the legislature's power to declare war


For example, if Washington decided treaty obligations required us to fight with the French, we would be at war with England
There are at least two possible arguments Hamilton could have made concerning Washington's power to issue the Proclamation of Neutrality:

it is an extension of Washington's duty under oath to "preserve, protect and defend the Constitution" by preventing the US from being drawn into the war between France and England

the threat such a war would pose could create a crisis in national survival, allowing a prerogative claim to be made
More importantly, perhaps, he could have rested his argument on the case he already made: the legislature and judiciary are not the appropriate branches to make such a proclamation; therefore it fall to the executive to do so.

Even though that claim may be suspect in itself (doesn't Congress have the power to "provide for the common defense," "regulate commerce with foreign nations" and have powers "necessary and proper" for carrying these out?)
That means the idea of concurrent powers is one that does not fit with the way the Constitution was conceived.
That has us speaking to the rest of the world through two different parts of government, both "constitutional and authentic" but saying opposite things.
Separation of powers would then be "thrown into absolute hotchpot and exposed to a general scramble…."
Historical disagreement about who was "right":

Justice Robert Jackson - they "largely cancel each other"
He had a few reasons

he was home in Virginia

worried that he didn't have access to all the materials he would need

worried he hadn't be privilege to all the "behind the curtain" discussions in Washington's cabinet

and he didn't want to cross Washington himself
We're still left (as we will see) with the problem of resolving conflicts when two branches claim authority over an area of "concurrent" power.
"Citizen Genet" was sent to the US to encourage American citizens to participate in the war (by serving on French ships) and encouraging action against the Spanish in Florida (Spain was an ally of England).
Criticize Proclamation = Criticize Washington


"..the discussion covers a design of
weakening the confidence of the
People in the author of the measure.."
Hamilton again uses a
"negative" argument
He tells you who CAN'T do this to
draw you to the conclusion of
who CAN
But which part of government gets to issue a proclamation of neutrality?
Why? Because he WANTS to - he sees this as an opportunity to argue for something he believes in
Hamilton says Article I gives a very specific list of enumerated (written down) powers to Congress.

"All legislative power herein granted...."
This is where a negative argument can be very tricky:

Hamilton doesn't argue so much in favor of POTUS having this power as much as why the others do not
But that doesn't necessarily mean POTUS should have that power either
Regulating commerce
Coining money
Declare war
Coin money
Regulate commerce
Declare war
Article I - Legislative powers
Article II -
POTUS and
power
"For God's Sake,
my dear Sir,
take up your pen,
select the most striking
heresies, and cut him
to pieces in the face of
the public." -
Thomas Jefferson
Madison didn't jump at the
chance to do this

Madison's
argument is
actually on
fairly narrow
grounds:
he doesn't directly
refute Hamilton's
idea of executive
power, but he
does take on
Hamilton's
interpretation
of the war
making and
treaty making
powers
That may seem like a
small point, but it's a very
important one
Madison thought separation of powers was a "fundamental principle in the organization of free governments"
Yes, the President is "Commander-in-Chief", but
that doesn't relate to treaty-making since
declaring war is separate from it

And yes, POTUS must "take care the laws are faithfully executed" - but execution is not MAKING law but carrying it out
Royalist thinking - war and treaty
making in the hands of the executive
alone are "royal prerogatives"
If POTUS decides a treaty does not require us to participate in a war today, but tomorrow Congress does make that decision and declares war, a constitutional declaration would be at odds with a constitutional proclamation (under Hamilton's concept)
"Oh yes we are!"
That Madison believes
should never be allowed
to happen.
"We're not going
to war with you"

In fact, if it can happen with executive-legislative powers, it could as easily happen with executive-judicial powers.
Madison and Hamilton "largely cancel each
other" and are "as enigmatic as the dreams
Joseph was called upon to interpret for the Pharaoh.'
Justice Robert Jackson (Youngstown Sheet and Tube v. Sawyer)
As we will discuss, changes in our understanding of the role of the president, the nature and technology of warfare and even advances in communication are going to make the limits of power a continual problem to address.
Full transcript