George Washington’s Constitutional Theory

Dr. Lindsay Chervinsky is a White House Historian for the White House Historical Association. She received her B.A. with honors in history and political science from George Washington University and her masters and Ph.D. in Early American History from the University of California, Davis and completed a postdoctoral fellowship at the Center for Presidential History at Southern Methodist University before joining the WHHA. Her book, The Cabinet: George Washington and the Creation of an American Institution, will be published by Harvard University Press on April 7, 2020. She has published articles in the Presidential Studies Quarterly and Oxford Foreign Relations, and written opinion pieces for Time and The Washington Post. Dr. Chervinsky’s article, Interpreting Article II, Section 2: George Washington and the President’s Powers appears in the Law and History Review symposium on originalism and legal history (volume 37.3).

When you think of Alexander Hamilton, what do you think of? Maybe the musical or the fatal duel with Aaron Burr or the Federalist Papers? How about James Madison? Probably the Constitution, or perhaps his presidency. What about George Washington? You likely think of his command of the Continental Army, or his presidency captured by the famous Lansdowne Portrait now hanging in the Smithsonian. Maybe the famous Houdon marble bust comes to mind. You probably don’t think of him as a political theorist or constitutional scholar. But that would be a mistake.

Washington intentionally left behind very little written documentation of his ideas about the Constitution or how he interpreted the presidency. Self-conscious about his lack of formal education, he preferred to leave the voluminous tracts and manifestos to his more learned contemporaries. But that didn’t mean he didn’t have ideas about how the Constitution should operate or the powers of the executive. While the First Federal Congress was creating the executive departments, passing the amendments now known as the Bill of Rights, and grappling with the day-to-day realities of governing, Washington was formulating his own ideas about executive authority and the powers of the presidency.

Mostly, Washington revealed his ideas through actions—he seized the opportunity to dictate foreign policy during the Neutrality Crisis in 1793, he wielded federal authority and sidelined Congress during the Whiskey Rebellion in 1794, and he asserted executive privilege and prevented the House of Representatives from playing a more active role in the treaty process in 1796—all covered in depth in my book The Cabinet: George Washington and the Creation of an American Institution.[1] However, Washington did leave a few written traces of his constitutional interpretation, most importantly his annotated Acts of Congress.

In the fall of 1789, Congress adjourned after its first session. Before heading out of town for a tour of the northern states, Washington ordered leather-bound copies of the Constitution and all of the legislation passed by the First Federal Congress. He had a plaque put on the front of his copy, reading “President of the United States” and he called this volume his “Acts of Congress.”[2] He had a similar plaque made for his department secretaries, Chief Justice John Jay, and the Associate Justices with each plaque stating their position. In late fall, Washington retrieved his volumes from the printer and gifted them to their intended recipients.[3] Each year, Washington ordered an updated volume with the new legislation passed during the prior term.

At some point, Washington made a number of notations in this volume. We don’t know when he made them, but my best guess is early 1790 as he was preparing his annual address to Congress (now known as the State of the Union). He wouldn’t have made the notations after fall 1790, because he would have had an updated volume and no reason to turn to an outdated version. So sometime between late October 1789 and fall 1790, he wrote in the book.[4]

There are two notations that are especially important. Next to Article II, Section 3, he wrote “required” next to the clause stating that the president shall make regular updates to Congress on the state of the union. Next to Article II, Section 2, he wrote “president powers” next to the clause stating that he may request written advice from the department secretaries and that the Senate shall advise and consent on the treaties.[5]

Why didn’t he use the same phrase next to both sections? Because he drew a distinction between what he had to do (report to Congress) and what he could do if he needed advice and support (get written advice from the department secretaries and meet with the Senate).

The timing of these notations is critical. A few months earlier, in August 1789, Washington had visited the Senate to ask for advice for the first time. He was planning to send a peace commission to meet with representatives from the Creek Nation and North and South Carolina. He had never sent a peace commission before and wanted the Senate’s advice about the instructions he should send and the scope of the mission. In July, Washington had sent all existing treaties and met with a committee to plan his visit.[6] On the day of the meeting, he brought acting Secretary of War Henry Knox to answer any questions. Despite all of his preparations, the senators refused to answer his questions or debate the issue. Instead, they wanted additional time to discuss the matter in committee and requested that Washington return in a few days. After yelling at the senators for wasting his time, Washington agreed to return the following Monday, but he concluded that the Senate was ill-suited to serve as an advisory council on foreign affairs. He needed immediate advice and support when faced with diplomatic challenges and couldn’t wait for committees to deliberate.[7]

Around the same time that Washington annotated his Acts of Congress, he also started meeting privately with the secretaries of the executive departments. He had initially limited his interactions to writing, but quickly discovered that the issues facing the executive were too complex to be handled through parchment and quill. Instead, Washington and the secretaries exchanged letters and then the secretary would come to Washington’s office and they’d discuss any follow-up questions or edits to the proposed document.[8]

Washington’s rejection of the Senate as an advisory body and introduction of in-person meetings suggest that he was experimenting with new ways to govern as challenges emerged. He had concluded that the options outlined in the Constitution were insufficient and yet he believed that the Constitution was intended to empower the federal government, and most importantly, the executive, to act firmly and decisively. So he interpreted Article II, Section 2 accordingly and set about trying to find advisors that provided the support he needed.

The cabinet was the culmination of this creative process. Washington convened the first cabinet meeting on November 26, 1791—two and half years into his presidency.[9] The cabinet did not exist from day one of his administration and was not created by the Constitution. In fact, the delegates to the Constitutional Convention rejected several proposals that would have created an executive council, including one that looked almost identical to the future cabinet. Instead, the delegates expected the Senate to serve as an advisory body on foreign affairs and the secretaries to provide advice on matters pertaining to their departments.

Washington understood these expectations and initially tried to limit himself to these options. But when they proved inadequate, he didn’t hesitate to interpret the Constitution as granting him the power to seek out the advisors he needed. By doing so, Washington became one of the first to reject the original interpretation of the Constitution and favored an interpretation that offered him the power he needed to govern effectively.

[1] Lindsay M. Chervinsky, The Cabinet: George Washington and the Creation of an American Institution (Cambridge, MA: Belknap Press, 2020).

[2] George Washington, “October 1789,” The Diaries of George Washington, ed. Donald Jackson and Dorothy Twohig (Charlottesville, VA: University of Virginia Press, 1976-1979), 5: 448-488.

[3] George Washington to John Jay, 9 December 1789, The Papers of George Washington, ed. W.W. Abbot, et al. (Charlottesville, VA: University of Virginia Press, 1987—present), Presidential Series, 4: 383.

[4] Acts passed at a Congress of the United States of America (New York: Francis Childs and John Swaine, 1789), 6-9. The Washington Library, Mount Vernon Ladies Association.

[5] Acts passed at a Congress of the United States of America, 6-9. The Washington Library, Mount Vernon Ladies Association.

[6] George Washington to the United States Senate, 25 May 1789, The Papers of George Washington, Presidential Series, 2: 391-92. George Washington to the United States Senate, 21 August 1789; 22 August 1789, The Papers of George Washington, Presidential Series, 3: 512-27.

[7] William Maclay. The Diary of William Maclay, ed. Kenneth R. Bowling and Helen E. Veit (Baltimore: Johns Hopkins University Press, 1988), 128-30.

[8] For one of the first examples of these meetings, see Henry Knox to George Washington, 20 January 1790, The Papers of George Washington , Presidential Series, 5:24-25.

[9] George Washington to Thomas Jefferson, 25 November 1791, The Papers of George Washington, Presidential Series, 9:231-32.