Creating a presidency - Part I

The colonists' experience with Britain's King George III had instilled in them fear of executive power, but the course of events since independence had convinced them that government without an executive branch degenerates into anarchy.

The authors of the Constitution, instead of coping with the problem, passed the buck. In drafting Article II, they sketched the powers and duties of the president in general terms and left it to George Washington—who was the only man the American people would trust to be the first president—to fill in the details by the precedents he established.

Washington, for his part, was less than eager to take on such awesome responsibility. He accepted it out of a sense of duty, but resolved to proceed with caution. Accordingly, he tended at first to treat the Constitution as if it were a manual of instructions, adequate to cover every situation that might arise. Experience taught him otherwise, and in that sense he was like his successors—he had to learn on the job.

For instance, the Constitution empowered the president to make treaties "by and with the Advice and Consent of the Senate." One Saturday morning in 1789, Washington and Secretary of War Henry Knox showed up in the Senate chambers to seek the advice and consent of the members on a proposed Indian treaty.

General embarrassment and confusion ensued, for the Senate was too large and too committed to legislative procedures to serve as an effective advisory body. Washington never again sought the advice of the Senate. Instead he presented it with finished treaties and asked only its consent.

But that left the president without a constitutionally established council of advisers, and he needed one. During the war, Washington had regularly assembled his top officers for full discussions before he made decisions, and he found it difficult to function any other way.

The obvious solution was to use his department heads as an advisory council, but the Constitution authorized the president only to "require" their opinions "in writing" and said nothing about consultations or verbal opinions.

For that reason, it was not until the end of 1791 that Washington called a meeting of his "Cabinet" (which, at first, included the vice president). It was not until 1793, during the French Revolutionary Was crisis, that Washington began to hold Cabinet meetings as a regular procedure.

Another feature of the Constitution discomfited Washington. The Constitution requires the president to swear an oath to "preserve, protect, and defend the Constitution." Washington took that provision seriously and literally, and assumed that the veto power was provided mainly as a means of blocking unconstitutional legislation. He was no expert in constitutional theory, however, and was not at all certain as to how and when he should use the power.

The issue first arose early in 1971, when Congress passed a bill chartering a corporation, the Bank of the United States. Many people, including "the Father of the Constitution," James Madison, insisted that the bill was unconstitutional.

Washington turned to Attorney General Edmund Randolph, Secretary of State Thomas Jefferson, and Secretary of the Treasury Alexander Hamilton for written opinions. The first two argued one way, Hamilton precisely the opposite. Washington followed Hamilton's advice and signed the bill, but the episode left him uncomfortable.

Two years later, when another complex constitutional question came up, Washington asked the Supreme Court for an advisory opinion, but the court declined to give one.