“Lifetime Tenure” When the Supreme Court Began

The U.S. senate is holding hearings on the nomination of a new Supreme Court justice. Some senators have come out against giving this nominee a “lifetime appointment” despite having previously approved her lifetime appointment as a federal judge at two levels.

Social-media discussions of this issue got me thinking of what a “lifetime appointment” meant when the U.S. Supreme Court first met.

Lifetime judicial appointments were common in the British and thus British-American legal systems. Although overall life expectancy was lower in the eighteenth century, that’s largely due to childhood mortality, so once a mature man was appointed to the bench he often served for many years.

(Colonial Rhode Island was an exception to that system of lifetime appointments. Under its eighteenth-century constitution, judges were elected for one-year terms, though they could be reelected. Which just shows how anomalous Rhode Island was.)

I decided to look at the Supreme Court justices appointed in the 1790s to see how long they stayed alive and stayed on the court.

• John Jay / 6 years on the court / 40 more years of life after appointment 
• John Rutledge / 1 one year on the court, then another stint of a few months four years later / 11 more years of life 
• William Cushing / 20 / 20 
• James Wilson / 9 / 9 
• John Blair / 5 / 10 
• James Iredell / 9 / 9 
• Thomas Johnson / 2 / 28 
• William Paterson / 13 / 13 
• Samuel Chase / 15 / 15 
• Oliver Ellsworth / 4 / 11 
• Bushrod Washington / 31 / 31 

Thus, from early on we see Supreme Court justices serving for a decade or more. Six of these eleven men sat on the bench until they died, with an average tenure of over fifteen years. Three more justices nominated by the Presidents active in the Founding—John Marshall, William Johnson, and Joseph Story—also served more than thirty years.

That said, while the first generation of U.S. politicians could conceive of Supreme Court justices serving for decades, the number of jurists who actually do so has gone up. As of today the historical average tenure on the court stands at sixteen years, but no justice has left the bench before that time since the late 1960s.

The other career model we see these days, a justice serving for decades and then retiring, was less common in the 1790s. Indeed, the three early justices who resigned citing reasons of health—John Blair, Thomas Johnson, and Oliver Ellsworth—did so after only a handful of years. The job was more physically demanding when Supreme Court justices still rode the circuit to hear federal cases rather than staying in the capital.

One path we haven’t seen for a long time was a justice resigning from the top bench because he preferred a different government role. John Jay left the court to be governor of New York, having already run for that offce in 1792 and gone overseas as President George Washington’s treaty negotiator in 1794.

Finally, there’s a storyline we really don’t want to see repeated. John Rutledge (shown above) resigned from the U.S. bench to become chief justice in the home state of South Carolina. Then President George Washington put him back on the Supreme Court as chief justice, only for the senate to decline to confirm him. Rutledge attempted suicide, withdrew from public life, and died five years later.

Gouverneur Morris and the “determined resolution”

Alas, I can’t find any poetry written at the Constitutional Convention of 1787.

But there were verses composed during Virginia’s ratifying convention in June 1788.

Virginia was crucial to the prospects of the U.S. of A. It was the oldest colony, the largest state, the bridge from the mid-Atlantic to the three more southern states. It was the home of the only man many Americans could picture as the new chief executive, George Washington.

The convention included some strong proponents of the new Constitution, like James Madison and Edmund Randolph, and some powerful opponents, like Patrick Henry and George Mason.

Gouverneur Morris traveled south from Pennsylvania to watch the debate in Richmond. While there, he stayed with a lawyer named John Marshall. Both men were strong Federalists.

Morris left Marshall with an “Extempora” poetic comment on the proceedings:

The State’s determined resolution
was to discuss the Constitution
For this the members come together,
melting with zeal and sultry weather
And here to their eternal praise,
to find it’s hist’ry spend three days
The next three days they nobly roam
thro ev’ry region far from home
Call in the Grecian, Swiss, Italian,
the Roman, Dutch rapscallion
Fellows who freedom never knew,
to tell us what we ought to do
The next three days they kindly dip yee
deep in the River Mississippi
Nine days thus spent ere they begin,
let us suppose them fairly in
and then resolve my gentle friend,
how many months before they end.

This verse remained in Marshall’s papers and wasn’t published until the twentieth century.

“I distinctly heard the Noise of the Tackles”

On 9 June 1768, a low-level Customs employee named Thomas Kirk told his bosses that, contrary to his declaration a month earlier, he had evidence of John Hancock’s ship Liberty being used to evade tariffs.

The next day, Kirk testified as follows before justice of the peace Samuel Pemberton:

I, Thomas Kirk of Boston, do declare and say, that being appointed one of the Tidesmen on board the Sloop Liberty, Nathaniel Barnard, Master, from Madeira, I went on board the said Vessel the 9th Day of May last, in the Afternoon, and about 9 o’Clock in the Evening Capt. Marshall came on board the said Vessel, and made several Proposals to me to persuade me to consent to the hoisting out several Casks of Wine that Night before the Vessel was entered, to all which I, I peremptorily refused;

upon which Capt. Marshall took hold of me, and with the Assistance of five or six other Persons unknown to this Declarent, they forcibly hove me down the Companion into the Cabin, and nailed the Cover down; I then broke thro’ a Door into the Steerage, and was endeavouring to get upon Deck that Way; but was forcibly pushed back again into the Steerage, and the Companion Doors of the Steerage also fastened, and was there confined about three Hours, and during that Time I heard a Noise as of many People upon Deck at Work a hoisting out of Goods, as I distinctly heard the Noise of the Tackles;

when that Noise ceased, Capt. Marshall came down to me in the Cabin and threatened, that if I made any Discovery of what had passed there that Night, my Life would be in Danger and my Property destroyed. The said Capt. Marshall then went away and let me at Liberty; and I was so much intimidated by the aforesaid Threatenings, that I was deterred from making an immediate Discovery of the aforesaid transactions:

Kirk’s story of being shoved around by a group of men working for Hancock echoed Owen Richards’s experience earlier in the spring. In Kirk’s case, however, he was pushed into the steerage deck of the ship rather than out of it.

What about the other tidesman assigned to work alongside Kirk? According to the Customs office in Boston:

The other Officer, who was also examined sayd he was asleep at the time of the above Transaction, but Kirk declared that he was drunk and gone home to Bed.—

Despite all the legal wrangling in this case, I haven’t been able to find the name of this tidesman, who would have been a significant witness one way or the other. Tidesmen were allowed to sleep on board the ships they were watching, apparently because people expected the noise of unloading to wake them up. But had this one really gone home to sleep off his drink?

What about Capt. John Marshall—how did he respond to Kirk’s accusation? Conveniently or not, Marshall had died on 10 May, immediately after this allegedly busy night. Indeed, some folks suggested that the exertion of unloading all those casks of wine had hastened his death at the age of only thirty-one.

The Customs office also stated that Hancock had “been heard to declare before her [the Liberty’s] Arrival, that he wo’d run her Cargo of Wines on Shore,” but it didn’t name anyone who had heard him say that.

Despite the questions about Kirk’s testimony, it was enough for higher-level Customs officers to move against John Hancock on 10 June 1768.

TOMORROW: Seizing a sloop.

John Hancock’s Busy Month of May 1768

On 9 May 1768, A couple of weeks after the Customs Commissioners failed in their attempt to have John Hancock prosecuted for interfering with their employees, another of Hancock’s ships arrived in Boston harbor.

“Barnard from Madeira,” reported the Boston Gazette’s shipping news. That meant that Capt. Nathaniel Barnard on the Liberty had arrived from Madeira, a Portuguese island. Though Madeira wasn’t part of the British Empire, for over a century the laws had made an exception for importing Portuguese island wine, and North American ships could even trade there directly.

The Sugar Act of 1764 specified the duty to be paid on that wine:

For every ton of wine of the growth of the Madeiras, or of any other island or place from whence such wine may be lawfully imported, and which shall be so imported from such islands or place, the sum of seven pounds

Capt. Barnard declared that he had brought in 25 casks of wine. Two tide waiters from the Customs service watched the unloading and certified the next day that they had seen nothing unusual.

On that same day, 10 May, Hancock lost a captain. The 16 May Boston Gazette reported:

Tuesday Morning last died very suddenly, Capt. JOHN MARSHALL, in the 32d Year of his Age: For several Years Commander of the Boston Packet in the London Trade.—His Funeral was attended last Friday Afternoon.

The Boston Packet was Hancock’s regular back-and-forth ship to London, and Marshall appeared often in his correspondence from the mid-1760s.

Later in May, as I described in postings starting here, Hancock got into a dispute over whether his militia company, the Cadets, would serve as an honor guard for a banquet that included the Customs Commissioners. While that argument ended peacefully, it exacerbated the bitter feelings between the young merchant and the men in charge of the Customs office. In those same weeks, Hancock was voted onto the Council but then vetoed off by Gov. Francis Bernard.

Meanwhile, on 17 May H.M.S. Romney arrived in Boston harbor. This was a fifty-gun warship that required a crew of over 300 men. In the Royal Navy’s time-honored way, Capt. John Corner began stopping merchant ships and drafting men from their crews to serve under him.

Lt. Gov. Thomas Hutchinson recognized that this spelled trouble:

It is unfortunate that in the midst of these difficulties the Romney has been impressing seamen out of all inward-bound vessels and although he does not take men belonging to the Province who have families, yet the fear of it prevents coasters [ships trading along the coast] as well as other vessels coming in freely, and it adds more fewel to the great stock among us before. It is pity that in peaceable times any pressing of seamen should be allowed in the colonies.

Gov. Bernard was likewise arguing against impressment, and thinking he should get more credit in Boston for doing so.

On Sunday, 5 June, locals threw rocks at boats from the Romney to keep them from landing, fearing that those sailors were coming to impress men. A couple of days later they rescued a sailor away from a press gang. As both a merchant and a politician, Hancock was involved the official protests against the navy’s practice.

As all that happened, Hancock’s Liberty was being loaded with its outgoing cargo: 200 barrels of whale oil and 20 barrels of tar. It was ready to sail. And then on 9 June, one of the tide waiters who had watched the Liberty in May declared that in fact he had seen it used for smuggling.

TOMORROW: What the tide waiter saw.

“First in the hearts of his fellow-citizens” first?

Yesterday I quoted the famous praise for George Washington that appears in the House of Representatives’ record for 19 Dec 1799: “first in war, first in peace, and first in the hearts of his countrymen.”

Those words were entered into the record by Rep. John Marshall. However, Marshall always insisted that the credit belonged to his fellow Virginian, Rep. Henry Lee (often called “Light-Horse Harry” Lee and shown here).

In 1832 Marshall set down this recollection in a letter:

As the stage passed through Philadelphia, some passenger mentioned to a friend he saw in the street the death of General Washington. The report flew to the hall of Congress, and I was asked to move an adjournment. I did so.

General Lee was not at the time in the House. On receiving the intelligence which he did on the first arrival of the stage, he retired to his room and prepared the resolutions which were adopted with the intention of offering them himself.

But the House of Representatives had voted on my motion [to adjourn], and it was expected by all that I on the next day announce the lamentable event and propose resolutions adapted to the occasion.

General Lee immediately called on me and showed me his resolutions. He said it had now become improper for him to offer them, and wished me to take them. As I had not written anything myself and was pleased with his resolutions which I entirely approved, I told him I would offer them the next day when I should state to the House of Representatives the confirmation of the melancholy intelligence received the preceding day. I did so.

Marshall also wrote about that moment in his overly long biography of Washington, published in 1804-07. Circumspectly not naming himself, he wrote that the following “resolutions were prepared by general Lee, who happening not to be in his place when the melancholy intelligence was received and first mentioned in the house, placed them in the hands of the member who moved them”:

Resolved, that this house will wait on the president in condolence of this mournful event.

Resolved, that the speaker’s chair be shrouded with black, and that the members and officers of the house wear black during the session.

Resolved, that a committee, in conjunction with one from the Senate be appointed to consider on the most suitable manner of paying honour to the memory of the MAN, first in war, first in peace, and first in the hearts of his fellow-citizens.

Sharp-eyed readers will note that these clauses differ from what appears in the House record, quoted yesterday. The official resolutions spelled out “President of the United States” and called the event a “national calamity” instead of a “mournful event.” The third resolution is worded differently, and there’s a fourth about adjournment.

And when it comes to the most famous phrase, “first in the hearts of his countrymen” appeared in Marshall’s biography as “first in the hearts of his fellow-citizens.”

The authors I’ve read don’t seem to know what to make of this. Some suggest that Marshall was simply wrong in his Washington biography, even though he wrote about an event that had happened only eight years before and the official House records were available to him (he was by then Chief Justice of the Supreme Court, after all).

Another possibility is that in the biography Marshall quoted the actual draft that Lee had handed him. In that case, “fellow-citizens” was the first version of “countrymen,” and Marshall or the House revised Lee’s language.

Within a couple of days the “countrymen” phrase had become official in both House and Senate resolutions, and Lee incorporated that into the public eulogy he delivered on 26 December.

Celebrating Washington in Cambridge and South Boston, 22 Feb.

George Washington’s Birthday is on Monday, February 22. I was going to spotlight the special tours of the general’s headquarters in Cambridge that day, led by Garrett Cloer of the Longfellow House–Washington’s Headquarters National Historic Site.

However, this afternoon I heard that those tours are all booked up. If you want to take a chance on cancellations, call 617-876-4491 to hear if spaces have opened up.

Meanwhile, over at the South Boston Library, the South Boston Historical Society will host Prof. William M. Fowler of Northeastern speaking on “First in War, First in Peace, First in the Hearts of his Countrymen!” That salute to Washington will run from 6:30 to 7:45 P.M. The library branch is at 646 East Broadway, and the event is free to the public.

The title of Bill Fowler’s talk comes from the resolutions that the U.S. House passed on 19 Dec 1799 after receiving news of President Washington’s death. The official record of the House offers this text of the resolutions:

1. That this House will wait on the President of the United States, in condolence of this national calamity.

2. That the Speaker’s chair be shrouded with black, and that the members and officers of the House wear mourning, during the session.

3. That a joint committee of both Houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen.

4. That when this House adjourns, it will adjourn until Monday next.

When the Senate responded to the House, it too used the phrase “first in war, first in peace, and first in the hearts of his countrymen.” And when John Marshall read a eulogy written by Gen. Henry Lee in front of Congress a few days later, he said of Washington: “First in war, first in peace, and first in the hearts of his countrymen, he was second to none in the humble and endearing scenes of private life.”

TOMORROW: But what was the first form of that phrase?

The Long Process of Labeling the Bill of Rights

As I noted back here, James Madison used the label “bill of rights” for the first of his proposed amendments to the U.S. Constitution—a proposal that never got out of Congress.

He also proposed a bunch of limitations on the federal government that became the first ten Amendments to the Constitution, but he doesn’t seem to have considered those Amendments to comprise the United States’s own Bill of Rights.

Instead, Madison and his contemporaries continued to use the phrase “bill of rights” to refer to a general statement of the government’s powers and limitations. The one possible exception I’ve found in Founders Online is in a 1792 letter from Thomas Jefferson to George Washington. In one of those internecine squabbles that’s so much more entertaining on the Broadway stage than in your cabinet, Jefferson wrote to the President:

you will there see that my objection to the constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies trial by jury, & a constant Habeas corpus act. Colo. [Alexander] Hamilton’s was that it wanted a king and house of lords. the sense of America has approved my objection & added the bill of rights, not the king and lords.

Jefferson clearly saw the First Amendment as part of his desired “bill of rights.” Whether he thought of all ten Amendments under that label is unclear.

American legal authorities don’t seem to have publicly applied the label “Bill of Rights” to the Amendments for decades. In Barron v. the Mayor and City Council of Baltimore (1833), Chief Justice John Marshall delivered an opinion that Article 1, Section 9 of the Constitution “enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the power of the general [i.e., federal] government…”

You remember the fundamentals laid out in Article 1, Section 9, right? Some are indeed important for individual rights, such as habeas corpus. But that section also protected the transatlantic slave trade until 1808 and tackled the burning issue of noble titles. It was a general list of limitations on Congress.

Incidentally, Marshall’s decision confirmed that those clauses and most other parts of the Constitution applied only to the federal government, not the states. So this decision seems, to modern eyes, to codify a sadly limited conception of a U.S. Bill of Rights.

That same year, however, Marblehead’s own Joseph Story (1779-1845, shown above), who was both an Associate Justice of the U.S. Supreme Court and professor of law at Harvard, started the process of applying the label of the Bill of Rights the way we do today. In his highly influential Commentaries on the Constitution of the United States (1833), Story began a discussion of the Amendments this way:

Let us now enter upon the consideration of the amendments, which, (it will be found,) principally regard subjects properly belonging to a bill of rights.

The next year, Story revised that book for use in classrooms as The Constitutional Class Book, and this time he wrote:

When the Constitution was before the People for adoption several of the State Conventions suggested amendments for the consideration of Congress, some of the most important of which were afterwards acted upon by that body at its first organization; and having been since ratified, are now incorporated into the Constitution. They are mainly clauses, in the nature of a Bill of Rights, which more effectually guard certain rights already provided for in the Constitution, or prohibit certain exercises of authority supposed to be dangerous to the public interests.

Finally, in 1840 Story revised his textbook again as A Familiar Exposition of the Constitution of the United States, including a rewrite of the above paragraph and following it with:

Before, however, proceeding to the consideration of them, it may be proper to say a few words, as to the origin and objects of the first ten amendments, which may be considered as a Bill of Rights, and were proposed by the first Congress, and were immediately adopted by the people of the United States.

Thus, over the course of seven years Justice Story went from saying that the first ten Amendments covered what a bill of rights should to saying that we might as well think of them as a Bill of Rights (with capital letters).

According to legal historian Akil Reed Amar, Story’s label remained unofficial and qualified until well past the U.S. Civil War. Rep. John Bingham of Ohio tried to write the Fourteenth Amendment so that it applied the federal “Bill of Rights” to the states. The Supreme Court resisted both the doctrine and the phrasing for decades. Finally, a 1900 dissent by Justice John Marshall Harlan retroactively declared that “These [first ten] amendments have ever since [ratification] been regarded as the National Bill of Rights.”

Constitutional Correlations

In a recent issue of the New Yorker, Jill Lepore reviewed some recent books about economic inequality, which has been measured for a century on the Gini scale, and what that phenomenon might say about and mean for different societies.

Toward the end of her review Lepore mentions some work by the political scientists Alfred Stepan and Juan J. Linz that found correlatioons between economic inequality and the political structures that different nations had established:

Stepan and Linz identified twenty-three long-standing democracies with advanced economies. Then they counted the number of veto players in each of those twenty-three governments. (A veto player is a person or body that can block a policy decision. Stepan and Linz explain, “For example, in the United States, the Senate and the House of Representatives are veto players because without their consent, no bill can become a law.”) More than half of the twenty-three countries Stepan and Linz studied have only one veto player; most of these countries have unicameral parliaments. A few countries have two veto players; Switzerland and Australia have three. Only the United States has four. Then they made a chart, comparing Gini indices with veto-player numbers: the more veto players in a government, the greater the nation’s economic inequality. This is only a correlation, of course, and cross-country economic comparisons are fraught, but it’s interesting.

Then they observed something more. Their twenty-three democracies included eight federal governments with both upper and lower legislative bodies. Using the number of seats and the size of the population to calculate malapportionment, they assigned a “Gini Index of Inequality of Representation” to those eight upper houses, and found that the United States had the highest score: it has the most malapportioned and the least representative upper house. These scores, too, correlated with the countries’ Gini scores for income inequality: the less representative the upper body of a national legislature, the greater the gap between the rich and the poor.

The U.S. Constitution produced our malapportioned Senate because it was designed to respond to two of the pressing concerns of 1787: the small-population states didn’t want to give up the “one state, one vote” system of the Articles of Confederation and Perpetual Union; and the elite men at the Constitutional Convention had been spooked by the Regulator uprising in Massachusetts and didn’t trust democracy. Their design for the new federal Congress in turn led to the lesser but still significant malapportionment in the Electoral College.

Our Revolution was a step away from aristocratic government, in which hereditary monarchs and nobles had a disproportionate say on the basis of birthright. The new Senate wasn’t hereditary like the House of Lords, but it was initially designed to insulate its members from the voting population. The Seventeenth Amendment changed that. Senators’ six-year terms preserve them from facing the voters as often as other federal elected officials, but the fact that they represent states means that they can’t benefit from gerrymandering—producing more turnover in the Senate than in the House.

As for the veto players, I guess the four American ones are the House, Senate, President, and Supreme Court. The Constitution set up the first three to create “checks and balances”—a term coined by John Adams in 1787 (based on older British Whig phrases). The Supreme Court established itself as another veto player through decisions under Chief Justice John Marshall in the early 1800s.

Many other countries with legislatures also modeled on Britain’s bicameral Parliament have gradually removed veto power from their upper houses, rendering some almost symbolic. Most of those countries also have a weak or even symbolic head of state, concentrating legislative and executive powers in a prime minister. That’s how they get by with so few veto players/checks and balances—yet they remain “long-standing democracies with advanced economies.”

How much effect do those modern government structures have on economic inequality in those countries? As Lepore wrote, Stepan and Linz were finding correlations, not necessarily causes. Linz much preferred parliamentary systems over the U.S. of A.’s separation of powers, so these findings fit into his life’s work. Still, Stepan and Linz’s work makes one think about the unforeseeable consequences of laying out a constitution in the late 1700s.

“We found that there was a big crack”

Yesterday I started to quote a letter from E. J. Rauch published in the New York Times on 16 July 1911 about the crack in the Liberty Bell.

On George Washington’s birthday in 1835, when he was nine years old, little Emmanuel Joseph was returning from an errand for his mother when the custodian of the old Pennsylvania State House, a man named Downing, beckoned to him.

“Come here!” he called to me and several boys whom he spied in the square. After he had corralled six or eight of us—I don’t remember exactly how many—he told us that he wanted us to ring the Liberty Bell in honor of Washington’s Birthday. The idea pleased us very much—we boys were not in the habit of ringing the old bell—and we agreed to do it.

Then Downing climbed into the steeple of the State House and tied a rope to the clapper of the bell. Coming down again, he put the end of this rope into our hands and instructed us to pull with all our might, which we did.

We were working away, and the bell had struck, so far as I can recall, about ten or a dozen times, when we noticed a change in the tone. We kept on ringing, though, but, after a while, the steeplekeeper noticed the difference, too. Surmising that something might be wrong, he told us to stop pulling the rope. Then he climbed back into the steeple, we boys following behind.

On the side of the bell that hung toward Walnut Street we found that there was a big crack, a foot or fifteen inches long. Downing then told us to run along home. We obeyed.

What happened after that I forget—boy-like I didn’t do any worrying, and heard no more about the cracking of the bell until some years later. Then, however, and many times since, I have read of how the bell came to be cracked, but never have I seen the version which I have just given. I honestly believe it is the correct one.

A nineteenth-century tradition held that the bell cracked while being tolled on 8 July 1835 for Chief Justice John Marshall’s death. But perhaps that was the day when the public learned about the crack that had appeared a few months before. Perhaps Rauch misremembered the occasion when he had helped pull the rope. Or perhaps his story has no foundation in fact; normally people wouldn’t want credit for damaging a national icon, but the crack in the Liberty Bell is part of what makes it iconic.

The historical record shows, however, that Philadelphia continued to order the Liberty Bell to be rung after 1835.

TOMORROW: The final blow.

(The picture above illustrates a legend about the signing of the Declaration of Independence that Philadelphia author George Lippard came up with in 1847. It’s got nothing to do with Thomas Downing, E. J. Rauch, and the other boys. But I couldn’t resist using it.)

The Constitution and the Commander-in-Chief

People are paying a lot more attention these days to how the U.S. Constitution defines (and doesn’t define) the military authority of the President and Congress. Members of the Bush-Cheney administration have cited the President’s role as “commander-in-chief” as if that conveyed the power to unilaterally decide anything vaguely military, including (at latest count) overseas deployments, surveillance of anti-war activists in the U.S. of A., trials of people who are specifically not classified as prisoners of war, &c.

In today’s New York Times Assistant Editor and lawyer Adam Cohen uses the “Editorial Observer” column to look at what the Constitution and Supreme Court decisions really say. Here’s an extract about the document’s original context and early interpretation:

The Constitution’s provision that the president is the commander in chief clearly puts him at the top of the military chain of command. Congress would be overstepping if, for example, it passed a law requiring generals in the field to report directly to the speaker of the House.

But the Constitution also gives Congress an array of war powers, including the power to “declare war,” “raise and support armies” and “make rules concerning captures on land and water.” By “declare war,” the Constitution’s framers did not mean merely firing off a starting gun. In the 18th century, war declarations were often limited in scope — European powers might fight a naval battle in the Americas, for example, but not battle on their own continent. In giving Congress the power to declare war, the Constitution gives it authority to make decisions about a war’s scope and duration.

The Founders, including James Madison, who is often called “the father of the Constitution,” fully expected Congress to use these powers to rein in the commander in chief. “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it,” Madison cautioned. “It has accordingly with studied care, vested the question of war in the Legislature.”

In the early days of the republic, the Supreme Court made clear that Congress could limit the president’s war powers — notably in the Flying Fish case. In 1799, during the “Quasi War,” the undeclared sea war between the United States and France, Congress authorized President John Adams to clamp down on trade between the two nations by stopping ships headed to French ports. But Adams went further, ordering commanders to stop ships that were sailing to or from a French port.

When the Flying Fish was seized while sailing from a French port — something Congress had not authorized — the ship’s owner sued. The Supreme Court decided in his favor, ruling that the president had no right to issue the order he did. John Marshall, the nation’s greatest chief justice [shown above], declared that even in a time of hostilities, a president’s decision to act militarily beyond what Congress had authorized was “unlawful.”

I think anyone reading Gen. George Washington’s wartime correspondence would notice how much he deferred to Congress on major decisions. He advised that legislature strongly, clearly advocating for certain decisions and almost begging for others, but he didn’t view his appointment as commander-in-chief to mean that he was the ultimate decision-maker and was careful to avoid implying he was. He worked for Congress, which in turn worked for the people of the thirteen states.

Later Washington presided over the Constitutional Convention and served as the first President under its new federal structure. For his remarks on the limits of Presidential powers, see this posting.