George Washington's Role in Shaping the Unwritten Constitution

The unwritten constitution of America plays a crucial role in supplementing the written text, especially in areas where the document provides limited guidance. This is evident in the Ninth and Fourteenth Amendments, which allude to unenumerated rights without specifying their nature or how to identify them. Similarly, Article Two, which outlines the executive branch and the presidency, is notably terse, leaving many presidential actions unitemized.

The Vagueness of Article Two and the Role of George Washington

Article Two's first sentence, "The executive power shall be vested in a president the United States of America," is often interpreted as a residual catch-all, implying powers beyond those explicitly listed, such as commander-in-chief duties or the pardon power. However, the Constitution's vagueness regarding the scope of executive power raises questions about how a president's proper functions are determined.

The primary reason for this lack of specificity, and the answer to what a president should do today, lies with George Washington.

Reasons for Constitutional Vagueness Regarding the Presidency

1. Lack of Historical Models: The framers lacked clear historical precedents for the presidency they envisioned. They desired a president more powerful than a typical state governor (who often lacked veto power, independent election, or command over a continental army) but significantly weaker than a monarch like George III. The vast difference between royal and state executive power made precise definition difficult.

2. Diverse and Comprehensive Executive Functions: The executive branch inherently performs a wide array of tasks that are difficult to encapsulate in a comprehensive job description.

   • Legislature's Role: Congress has a relatively limited set of functions: passing laws, authorizing expenditures, organizing itself, policing its membership, and overseeing other branches through investigations and impeachments.
   • Judiciary's Role: Judges primarily decide cases under law and monitor subordinates within the judicial branch.
   • President's Multifaceted Role: Presidents, however, engage in a much broader range of activities:
     • Promulgating administrative regulations (acting like mini-legislators).
     • Finding facts, construing, and applying laws in the first instance (acting like initial judges).
     • Officially proposing new legislation and defining national reform agendas.
     • Participating in federal statute passage through the veto power.
     • Appointing federal judges.
     • Communicating and coordinating with state governments.
     • Managing a vast bureaucracy.
     • Collecting revenues and dispersing funds.
     • Managing federal properties.
     • Filing and defending lawsuits on behalf of the nation.
     • Preventing, investigating, and prosecuting misconduct.
     • Exercising the pardon power.
     • Commanding armed forces in war and peace.
     • Responding to disasters and crises.
     • Directing diplomacy and international espionage.
     • Personifying America on the international stage.

   Even today, executive power is often defined residually as "anything that's not legislative or judicial," or as the function of keeping the system afloat and responding to unique opportunities or crises, given the president's continuous availability.

3. Designing for George Washington: The framers intentionally under-textualized Article Two because they expected George Washington to be the first president. They designed the presidency with him in mind, anticipating that his conduct and actions would establish precedents and define the proper role of the office. They feared that too much specificity might not fit his persona or might deter him from accepting the role.

   Washington was the unanimous choice for president, having presided over the Philadelphia Convention (which likely led to the title "president"). His support, alongside Benjamin Franklin's, was crucial for ratification. Washington was seen as the "indispensable man" due to several factors: * Military Prowess: He was a general who defeated the British and could protect the nation without becoming a tyrant, as evidenced by his disbanding the army after the Revolutionary War. * Geographic and Political Centrality: As a Virginian, from the largest and most populous state, he represented a central figure in the Union. * Lack of Dynastic Ambition: Having no sons, he was trusted not to establish a dynasty.

   Therefore, Article Two is best read as an implicit delegation to George Washington to concretize the vague job description. He was the "leading man" who would give three dimensions to the presidency, which was only sketched out in the Constitution.

Washington's Precedents and Presidential Power Today

The actions of George Washington established many aspects of presidential power that are not explicitly detailed in the Constitution but are widely accepted today. Presidents, in effect, ask "What would George Washington do?" when exercising their authority.

Examples of Washington's Influence on Presidential Power

1. Recognition of Foreign Governments: The Constitution does not clearly grant the president the power to unilaterally recognize foreign governments. While the power to "receive ambassadors" is mentioned, the Federalist Papers described this as a mere courtesy. However, Washington, during the French Revolution, unilaterally decided to recognize the new French revolutionary government, despite previous treaties with the deposed monarchy. This established the presidential recognition power, which is now a significant aspect of foreign policy, allowing presidents to decide which regimes are legitimate (e.g., Jimmy Carter recognizing the People's Republic of China, President Obama recognizing Libyan rebels).

2. Sending Secret Envoys and Negotiating Treaties: The Constitution requires Senate approval for treaties. Yet, presidents frequently send secret envoys and conduct negotiations without prior Senate approval or even knowledge. This practice also stems from Washington's actions. He sent Governor Morris and later John Jay as secret envoys to Great Britain to negotiate treaties without initial Senate clearance, presenting the results to the Senate afterward. Thomas Jefferson famously followed this precedent with the Louisiana Purchase, unilaterally negotiating the deal with Napoleon before seeking Senate ratification and House funding.

These examples demonstrate that many presidential powers today are not derived from explicit constitutional text but from the unwritten constitution shaped by George Washington's actions and precedents.