the PreSIdentS
and the ConStItutIon
a LivinG histOrY
INSTRUCTOR’S GUIDE
whY cOnsider this BOOK
F O r YO u r c L a s s ?
WWW.NYUPRESS.ORG
•
A chapter for each president, so that the
reader learns about dramatic moments in
constitutional history in the context of the
people and events who shaped them.
•
A skillfully edited book so that forty-four
chapters on unique chief executives weave
together seamlessly to tell a powerful and
rich story worthy of all readers of history,
law, politics and the presidency.
•
The only book of its kind that shows the
U.S. Constitution itself evolving through
the bold initiatives (some successful, some
ill-fated) of presidents whom the Framers
entrusted to bring energy to the American
system of government.
1916 •
NYU PRESS
     100 
• 2016
OV ERV I EW
O v e rv i e w
The Presidents and the Constitution: A Living History can serve as the textbook
for undergraduate, graduate, and law school courses. It consists of 44 chapters,
one for each president, arranged chronologically, authored by prominent political
scientists, historians, law professors and journalists. The goal of the book’s
editor—a prominent author and scholar in the fields of American presidencies and
constitutional law—is to create an accessible and engaging text for a variety of
courses and seminars.
The book focuses on a familiar subject, the American presidency. However, it does
so through a unique lens—the constitutional issues and crises that each of the 43
men who have occupied the presidency have faced during the 225-year history of
the American Republic. The parameters of presidential power and the meaning of
constitutional provisions are explored in the context of major events of American
history. Broad themes that have constitutional implications—such as race, war
powers, national security, gender, etc.—are linked together to show how events
during one presidency interrelate with and shape events in later administrations.
With the exception of the initial classes, which are aimed at providing background
and covering foundational principles as an introduction, the course is designed
to be participatory. For each class, students can be assigned book chapters and
expected to participate in a class discussion of questions (which may be given to
the students in advance) based on the material they have read. For each chapter,
this Teachers Manual provides a set of discussion questions and a brief analysis of
several key issues to make teaching the course efficient and enjoyable.
Students should understand at the outset that due to the open-ended nature
of certain provisions in the Constitution and the historical context in which each
president has operated, many of the questions raised in class have no “right”
answer, and that the analysis one presents of an issue is often as significant as the
conclusion one reaches. Typically, students are required to write a short paper and
a long paper, and present them in class. The papers ordinarily focus on one or
more constitutional issues as they relate to a president or presidents of choice, a
presidential era, a historic event, a presidential power, etc.
The course tends to be lively, and provides a wonderful introduction to students
who are considering a law degree, or advanced study in American law, political
science or history. By learning about the presidents as they have shaped—or have
been shaped by—various provisions in the U.S. Constitution, students learn about
history, government, policy-making, and law. Simultaneously, they also learn how
to analyze legal issues that confront all three branches of government. In this
sense, the course can serve as a creative substitute for traditional undergraduate
and graduate courses in Constitutional Law, and develop students’ skills that will
prove invaluable in future courses of study. Hopefully, you will enjoy teaching the
course as much as the authors (and editor) have enjoyed writing this unique and
exciting book.
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BACKGROUND
At the outset of the course, students should be introduced to the Constitution
and the principles on which it was founded. A good beginning is the historical
context in which the Constitutional Convention of 1787 took place, with a
particular emphasis on the matters that influenced the founders in drafting
the Constitution. In this regard, the following information about the Articles of
Confederation, the state constitutions adopted during the Revolutionary War,
and the ideas of the Enlightenment that influenced the founding fathers can
provide useful background.
The Articles of Confederation. Adopted in 1781, the Articles served as the
written document that established the United States of America after the
colonies declared independence from Great Britain. The Articles created a loose
alliance of sovereign states, as well as a sovereign central government. The
central government, however, was weak, consisting of a single body, a onehouse legislature. While the central government was given the authority to make
treaties, maintain armed forces, coin money, and conduct foreign affairs, it did
not have the authority to tax or regulate commerce. In addition, it lacked both an
executive to carry out or enforce the acts of the legislature and a court system to
adjudicate national concerns. The limited power of the central government under
the Articles led to significant problems for the new country—disputes among
states over claims to western lands; a crippling national debt that the states
refused to address; border clashes with Britain and Spain; and a currency crisis.
As a result, a convention was called for the purpose of amending the Articles.
Ultimately, however, the delegates agreed that more than a mere revision of the
Articles was needed and began drafting an entirely new document to govern the
country.
I N TROD UCTION
intrOductiOn
State Constitutions. Since many of the delegates to the Constitutional
Convention had participated in state constitutional conventions, state
constitutions served as models for the federal constitution. Many of them
predated the U.S. Constitution. Almost uniformly, state constitutions guaranteed
and protected individual rights; emphasized that government’s power emanated
from the people; and required that the branches of government be separate.
Intellectual Influences on the Founders. The founders embraced the central
idea of the Enlightenment—that humanity could be improved through rational
change. The founders were influenced by, among others: Blackstone (the rule
of law), John Locke (the natural right of all men to life, liberty and happiness);
Montesquieu (the separation of powers among branches of government);
Rousseau (the social contract—all citizens contribute to the greater good and
cede power to the government for what ); Voltaire (religious tolerance and
freedom of thought and expression); and Adam Smith (a free-market economy
based on rational self-interest leads to prosperity for all).
THE PRESIDENTS
PUNISHMENTAND
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3
INTROD UCTI ON
Introduction
to the
Course
FOUNDATIONAL PRINCIPLES
Students should be familiar with the following principles found in the
Constitution, as they are encountered repeatedly throughout the book’s
chapters: separation of powers, checks and balances, federalism, republicanism,
limited government, and the rule of law. The points to be made about each
include the following:
Separation of Powers. The separation of powers doctrine aims to avoid the
tyrannical consequences of absolute power. The doctrine calls for a government
consisting of separate, distinct, and co-equal branches of government, each
wielding defined and unique powers. Under the Constitution, the government is
divided into three branches—the legislature, which is given the power to enact
the laws, the executive, which is given the power to execute the laws, and the
judicial, which is given the power to adjudicate. However, the doctrine does not
demand a complete and strict division of labor. Rather, the branches work in
coordination with one another.
Checks and Balances. Under the system of checks and balances in the
Constitution, each of three branches is able to restrain the others, so that no
single branch has too much power. For example, the executive branch has the
power to veto a law passed by the legislature, but the latter may override the
veto. The executive branch executes the laws, but the legislature appropriates
the funds to the executive to do so. The executive negotiates treaties, but the
legislature must ratify them. The legislature passes laws, but the laws are subject
to the judiciary’s interpretation and review.
Federalism. Federalism is a system of government in which the same territory is
controlled by two levels of government. (Other major types of government in the
world today are the unitary system, in which power is held at the national level
with very little power being held in political subdivisions, and the confederation,
in which there is a union of equal states, with some power being held at the
national level.) Under a federalist scheme, an overarching national government
governs issues that affect the entire country, and smaller subdivisions, such as
states, govern issues of local concern. Both the national government and the
smaller political subdivisions have the power to make laws and both have a
certain level of autonomy from each other.
Limited Government. The federal government has only the authority the
Constitution gives it to intervene in the affairs of individuals and in the activities
of the states.
Republicanism. The principle of republicanism reflected in the Constitution refers
to a form of government where the citizens conduct their affairs for their own
benefit and not for the benefit of a ruler. The term also refers to the fact that
democracy in America is not direct. Rather, the people elect representatives to
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hold office and exercise the powers of government.
The Rule of Law. The rule of law, as embodied in the Constitution, is associated
with the notion that there is a formal, regular process of law enforcement and
adjudication; “a government of laws, not of men.” (John Adams, “Letters of
Novanglus,” published in the Boston Globe, 1774.) The rule of law also means
that these rules are binding on rulers and the ruled alike.
THE CONSTITUTION
It is generally helpful to have students read the entire U.S. Constitution at
the beginning of the course, paying particular attention to its structure and
organization. Spending some time in class discussing the Constitution and
pointing out highlights sets the stage for later discussions of specific provisions,
the evolution of key issues, and as well as the interaction among the three
branches of government.
I N TROD UCTION
Introduction
POWERS
Because the students will find references in the book to the types of power the
Constitution grants, the following categories of power should be defined, as part
of your discussion of the Constitution:
Enumerated Powers. Also known as delegated powers, enumerated powers are
those expressly assigned to the federal government. For example, in Article I,
Section 8, Congress is expressly empowered to regulate interstate commerce: in
Article II Section, the president is expressly empowered to serve as commander
in chief.
Implied Powers. Implied powers are not expressly stated in the Constitution,
but flow from the express powers. For example, Article I, Section 8 grants
implied powers to Congress by stating that Congress the power to do make
laws “necessary and proper” to carry out its duties; Article II, Section gives the
president the implied power to remove cabinet officers by granting him or her
the express power to appoint them.
Inherent Powers. The federal government has those powers that are inherent
in the very idea of a sovereign nation and national government. The primary
inherent power is the power of self-preservation; i.e., a state has the right to
defend itself from foreign and domestic enemies.
Prohibited Powers. The Constitution also explicitly prohibits the federal
government from exercising certain powers. For example, Congress cannot tax
exports (Article 1, Section 9, Clause 5) or pass bills of attainder (laws that punish
individuals or groups without a judicial trial) or ex post facto laws (laws that
classify an act as a crime leading to punishment after the act occurs) (Article 1,
Section 9, Clause 3).
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5
INTROD UCTI ON
Introduction
to the
Course
Reserved Powers. Reserved powers are the powers that derive from that portion
of the Tenth Amendment which provides that powers not granted to the national
government and not prohibited to state governments, are “reserved to the
States.”
Concurrent Powers. Concurrent powers are powers held by both states and the
national government. An example of a concurrent power is the power to tax.
TEXT
The students should familiarize themselves with those parts of the Constitution
that they will encounter in the book’s chapters, with particular attention paid
to Article II. This can be accomplished by walking through and reading from
the provisions listed below. Preliminarily, you might introduce the competing
approaches that have been used since the nation’s founding to interpret the
Constitution. The proponents of a “strict construction” give the Constitution’s
text a literal and narrow meaning; the proponents of a “liberal construction” read
the words broadly and allow for a more expansive meaning.
The Preamble. The Preamble is the introductory statement of the goals at work in
the full text in the Constitution. With the words, “We the People…do ordain and
establish” the Preamble reflects the idea that the people (as opposed to a King,
for example) are sovereign and that the source of governmental power resides in
the governed themselves.
Article 1. Article I establishes the legislative branch. Under Section 1, “all
legislative powers shall be vested in the Congress,” which is made up of two
chambers—the House of Representatives and the Senate. Section 7 describes
the process by which Congress enacts laws. Section 8 lists the specific powers
of Congress, and includes the power to make “all laws necessary and proper for
the execution” of the specified powers. Often, the power of Congress will collide
with powers of the president; this is one of the book’s recurring themes.
Article II. Article II establishes the executive branch in the office of the
presidency. For this reason, it is central to the course. As the founders were
drafting the Constitution, they grappled with competing concerns—on the one
hand, they wanted an “energetic” chief executive who could effectively enforce
the laws and prevent abuse by a runaway legislature; on the other, they did not
want a chief executive who could usurp power and become despotic. Out of
their work, a new and unique model for a chief executive emerged in Article II.
Students should be made aware that the provisions in Article II are often general
and vague—with many blanks that have been filled in over time. The Article II
provisions that should be specifically reviewed include: the presidential eligibility
requirements of age, residency and citizenship (Article II, Sec. 1, cl. 3); the
selection process under the Electoral College (Art. II, Sec 1, cl. 3 and the Twelfth
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Amendment); the presidential term (Art. II, Sec. 1, cl. 1 and the Twenty-second
Amendment); the Vesting Clause (Art. II, Sec. 1, cl. 1); the Take Care Clause
(Art. II, Sec. 1, cl. 8); the Commander in Chief provision (Art. II, Sec. 2, cl. 1); the
Appointments Clause (Art. II, Sec. 2, cl. 2), the pardon power (Art. II, Sec. 2, cl.
1); the Treaty Clause (Art. II, Sec. 2, cl. 2); the veto power (Art. I, Sec. 7, cl. 2);
presidential succession (Art. II, Sec. 1, cl. 6); and impeachment (Art. II, Sec. 4).
Article III. Article III establishes the federal judiciary. Under Section 1, “[t]he
judicial power of the United States shall be vested in one Supreme Court, and in
such inferior courts as the Congress may from time to time ordain and establish.”
The Supreme Court, ultimately, possesses the authority to determine when
Congress and the president overstep their bounds and take action inconsistent
with the Constitution. For this reason, the Supreme Court also plays an important
role in the book’s chapters.
The Supremacy Clause. Article VI, Section 2 of the Constitution declares that the
Constitution and any laws passed under it are “the supreme Law of the Land.”
The Supremacy Clause essentially means that federal law, when applicable,
prevails over conflicting state law.
I N TROD UCTION
Introduction
The Amendments. Article V of the Constitution spells out the processes by which
constitutional amendments are proposed and ratified. There are 27 Amendments
in all. (The original text of the Constitution remains intact; amendments are
appended at the end of the text.) Amendments 1 through 10 are referred to as
the Bill of Rights. The Bill of Rights and the Amendments have often played an
important role in specific presidencies. It is worthwhile for students to review
them and to have a sense of their contents.
PREVIEW
Finally, you might wish to preview the interconnections spanning presidencies.
A good example is the fact that President Woodrow Wilson and the George
Burdick pardon are later connected to President Gerald Ford and the Richard
Nixon pardon; President Abraham Lincoln and the Civil War are connected to
Presidents George W. Bush and Barack Obama and the War on Terror. You might
also preview the overarching themes that span presidencies—race, gender,
Commerce Clause, national security, shaping the Supreme Court, and special
prosecutors. Students should be invited to begin noting these interconnections
and themes for themselves, and to identify their own interconnections as they
move through the book. If you wish to get an overview of these overarching
themes and connecting threads, be sure to review the Conclusion chapter; it
seeks to accomplish this goal in an exhaustive fashion, at the end of the book.
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P a rt I. T h e F o u n d i n g E r a
C h a p t e r 1. G e o rg e W a s h i n g to n 1789-1797
pa g e s 17-33
KEY ISSUES
As the nation’s first president to serve under a new Constitution, George
Washington was well aware that he would play a critical role in shaping the
American presidency and defining what it meant to be a president, not a king.
The Washington Chapter introduces students to several enduring precedents
Washington established for his successors.
You might open class discussion by noting that one of Washington’s immediate
concerns upon assuming office was finding the right balance between strong
executive leadership and respect for the power of the legislative branch. You
might also observe that Washington determined that building a collegial
relationship between the executive and legislative branches to demonstrate that
the Constitution’s system of checks and balances would work effectively was
essential to the country’s success. Consequently, you might add, Washington
made the conscious decision to approach Congress with deference, but also
with firmness of purpose. Students should be able to understand the wisdom
of Washington’s approach—he won the good will of Congress and secured its
cooperation and inspired trust in the people that their new government would
serve their interests.
Turning to the foreign policy challenges that Washington faced, a brief review
of the manner by which the Constitution divides war-related powers between
the president and Congress might be useful. Students should know that on
some matters, the division is clear. For example, the Constitution explicitly
grants the president certain exclusive powers as commander in chief—he or she
decides strategy on the field of battle and makes treaties (provided the Senate
gives its advice and consent)— and explicitly grants Congress certain others,
such as the authority to declare war and finance military operations. On other
matters, however, the allocation of power between the president and Congress
is less than clear. As a result, they have been the subject of dispute and settled
through the political process or by the U.S. Supreme Court. One such matter
highlighted in the Washington Chapter is the policy of neutrality, which came to
the fore when France and Great Britain went to war in 1793. Washington wanted
America to remain neutral; in his view, the county could not afford to become
embroiled in the conflict. The Constitution, however, did not clearly state which
branch of the federal government—the president or Congress—had the authority
to decide that America would remain neutral. When discussing Washington’s
approach to securing the policy of neutrality he favored, you might point out
the prudence and political adroitness it revealed. Washington announced the
country’s neutrality in the Proclamation of Neutrality of 1793. While he believed
that neutrality was in the president’s sphere of power to declare, he did not
ignore Congress. Instead, he invited Congress to comment on and improve his
Proclamation. Congress accepted Washington’s Proclamation and backed it up
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in a statute, the Neutrality Act of 1794. Thus, the question of the president’s
authority to decide neutrality was settled. The take-away for students is that
the course Washington steered not only avoided a showdown with Congress,
but also demonstrated that the executive and legislative branches could work
together and accomplish what the country needed.
You might remind students that when it came to organizing the presidency,
the Constitution did not give Washington much guidance. In Article II, Section
2, Clause 1, the framers anticipated the creation of executive departments by
Congress, to be headed by a “principal officer” who would provide the president
with an opinion “on any subject relating to the duties of their respective offices.”
However, the framers did not set forth the process by which the president would
secure those opinions. Consequently, Washington experimented. Eventually, he
settled on bringing the heads of departments and the attorney general together
into a body he dubbed his “cabinet,” and meeting with them collectively to
discuss and debate the issues of the day. When asked to evaluate Washington’s
choice, students should be able express that a president’s receipt of a variety of
views from cabinet members who debate the pros and cons of a particular policy
decision leads to a better decision-making process.
CH AP TER 1
P a rt I. T h e F o u n d i n g E r a
Turning to the Supreme Court, you might confirm that students understand that
although the Constitution provides for the establishment of a Supreme Court
and “such inferior Courts as the Congress may from time to time ordain and
establish” (Article III, Section 1), it does not prescribe the size of the highest
court or the number of lower courts. Congress first supplied the missing pieces
in the Judiciary Act of 1789—the Supreme Court was to have six members: five
associate justices and a chief justice; there were to be 13 district courts—roughly
one per state—and three regional circuit courts, which could hear appeals from
the district courts. As to how the appointment and confirmation of U.S. Supreme
Court justices (and lower court judges) was to proceed, the framers gave no
guidance in the Constitution. When the Senate denied Washington his choice of
John Rutledge as chief justice, it became clear that the process was not going
to be a mere formality and the Senate was not going to defer to the president’s
choice.
Another matter left unaddressed in the Constitution was the process by which
the president should secure the Senate’s “advice and consent.” The Chapter
describes the chaos that erupted in the Senate when Washington sought its
advice and consent on a treaty in person, and his determination never to seek
the Senate’s advice personally again. You might ask students to consider whether
Washington should have made more of an effort to establish a presidential
tradition of personal appearances before the Senate. The better answer seems
to be that in light of what happened when he did so, Washington correctly
concluded that the president should not be involved, even as a spectator, in the
THE PUNISHMENT
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CH AP TER 1
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pa g e s 17-33
Senate’s debates. It ran the risk of demeaning the dignity of the office and could
have weakened the office for his successors.
As to the Supreme Court’s role, after reminding students that Chief Justice Jay
indicated that Washington had likely overstepped his constitutional boundaries
by asking the Court to serve as an advisory council, they should understand
that Chief Justice Jay’s admonition was correct under the separation of powers
doctrine—executive decision-making is vested only in the executive branch.
You might also note that Washington’s request was inconsistent with that
portion of Article III, Section 2 which limits the judiciary’s power to “Cases” and
“Controversies.”
It is also important that students appreciate the fact that at the time, the
Constitution placed no term limits on the presidency. Washington, however,
chose not to seek a third term. He believed it was important to show the success
of America’s new political system was not dependent on any one person. A twoterm presidency became a tradition that all presidents honored, until Franklin
D. Roosevelt, who served for four terms, from 1933 to 1945. The Twenty-second
Amendment, which limits the president to two terms, was ratified in 1951 and
formalized Washington’s two-term practice.
QUESTIONS FOR DISCUSSION
1. George Washington was a president of “firsts.” Is it surprising to you that he
received the votes of all 69 presidential electors in 1788? Was this more like
a coronation?
2. Was Washington’s deference to other branches of government, particularly
Congress, a detriment to his presidency? Was this deference necessary to
building trust in the office of chief executive, as Washington believed?
3. We’ve already discussed the concept of separation of powers embodied in
the Constitution. Why did President Washington feel so strongly that it had
to be respected?
4. The debate over neutrality with respect to the issue of war between England
and France led to a public disagreement between the primary drafters of
the Federalist Papers. In the Pacificus-Helvidius debate, Alexander Hamilton
asserted that the president had the power to declare neutrality because the
Constitution made the chief executive “the organ of intercourse between
the United States and foreign nations.” (Art. II, Sec. 1). In contrast, James
Madison argued that the legislature, which was tasked with declaring war
(Art. 1, Sec. 11), logically possessed the power to declare neutrality. Who had
the better argument?
5. Although the framers viewed the appointment and confirmation of U.S.
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Supreme Court justices as little more than a mere formality in theory,
presidents beginning with Washington have learned that this is not the reality
in practice. Should the Senate be more deferential to the president and his
nominees, or does a highly-critical confirmation process better serve the
nation? Should political considerations be a basis for rejecting a president’s
nominee?
6. Washington invented the notion of a “cabinet” that advised the chief
executive, although the Constitution said little about organizing the
executive branch. (Art. II, Sec. 2) Was this a positive step?
CH AP TER 1
P a rt I. T h e F o u n d i n g E r a
7. When Washington sought to use the Supreme Court as an advisory council,
Chief Justice Jay rebuked the president’s attempt, stating that “the lines of
separation, drawn by the Constitution between the three departments of the
government” prevented the Court from rendering advisory opinions to the
president. What, if anything, in the Constitution supports Chief Justice Jay’s
determination?
8. Washington’s effort to appear before Congress in person, to seek “advice
and consent” of the Senate on a treaty, was a colossal failure. Why? Would
it have been better, long-term, if presidents had made it a point to appear
regularly before Congress to work out disagreements on treaties, presidential
appointment and other matters requiring the approval of the legislative
branch?
9. Why do presidents continue to give a “State of the Union” address (Article
II, Sec. 3) in Congress, in person? Could they simply mail the address to
Congress consistent with the Constitution?
10.Washington, we see, was a very “cautious” president. Would that approach
work today?
11.Another way of asking the same question: Compared to modern chief
executives, Washington’s presidency was weak. Yet, he still managed to
assert himself in several key respects, and to establish himself as one of
the great presidents in American history. What was Washington’s most
significant contribution to the development of presidential power under the
Constitution?
12.Was it a good or bad decision for Washington to decide, voluntarily, not to
seek a third term?
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CH AP TER 2
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C h a p t e r 2. J o h n A da m s , 1797-1801
pa g e s 34-46
KEY ISSUES
The highlights of the John Adams presidency include the Election of 1796,
which ushered Adams into office, and the Election for 1880, which ushered him
out. In addition to informing students about these consequential elections,
the John Adams Chapter introduces students to questions they will encounter
repeatedly in the book: what are the parameters of the president’s power to
engage the country militarily without congressional approval; what types of
restrictions on constitutional rights are Americans willing to tolerate in the name
of national security; and what conduct did the framers contemplate would merit
a president’s impeachment
To put the Election of 1796 in context, you might start with a brief history
of the rise of party politics in America. Students are likely unaware that the
Constitution did not refer to political parties. The reason, you might point
out, was that the founding fathers sought to prevent their formation, having
witnessed vicious fighting among political parties in Europe and saw “factions”
as a threat to the rational, collaborative process of government they sought to
establish. Therefore, when devising the procedure for electing the president, the
founders did not give political parties a role. Rather than designing a contest of
competing political ideologies, they created a contest among individuals. Article
II, Section 1, Clause 3 of the original Constitution provided for the establishment
of “The Electoral College.” In that body, each state had a number of delegates,
known as “electors.” That number was based on a state’s total number of U.S.
Senators and Representatives. Each elector was originally authorized to vote for
two persons for president; a first and a second choice were not designated. The
person receiving the most electoral votes became president and the runner-up
became vice president.
You might add that despite the founders’ hopes and intentions, political parties
did emerge. During Washington’s second term, Alexander Hamilton formed the
Federalist Party to advance his political philosophy, and Jefferson created the
Republican Party, later called the Democratic-Republican Party, to advance his.
During the formative years of our nation’s history, the interests of North and South,
rich and poor, and industry and agriculture competed. Out of that competition,
two profoundly different ideas about the role of federal government came into
view, as expressed by Hamilton and Jefferson, respectively. Hamilton, aligned
with the urban, mercantile interests of the North, believed that America would
thrive if it had a strong federal government with broad powers. He advocated for
the creation of a national bank that would establish fiscal policy, institute credit,
and standardize a national currency. Jefferson, aligned with agrarian interests in
the South, feared that a strong federal government would function more like a
monarchy and wipe out the newly-born democracy. He believed it prudent to limit
centralized power and allow more power to individual states.
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Turning to the Election of 1796, students should understand that the political
parties Hamilton and Jefferson established were firmly in place and assumed
center stage in the presidential election. They should know that in one
corner, stood John Adams, a Federalist; and in the other, Thomas Jefferson,
a Democratic-Republican, Under the rules then in place, Adams won the
presidency with the largest number of electoral votes (71) and Thomas
Jefferson, who secured the second largest number of electoral votes (68),
was elected vice president. (Thomas Pinckney, the person the Federalists had
selected to be Adams’s vice president, came in third and lost out to Jefferson.)
Accordingly, the nation’s top two executives represented not only widely
disparate views, but were also of two opposing political parties. It became clear
that the unanticipated rise of political parties compelled significant change
to the Constitution. Congress ratified the Twelfth Amendment in 1804. This
Amendment requires separate votes for the president and vice president and
also stipulates that the president and vice president must come from different
states. This progression can be used to show students how early provisions
regarding the presidency had to adapt based upon the experiences of the new
nation.
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Students should next understand that in the so-called “Quasi-War,” Congress did
not declare war against France and that the country’s military engagement was
limited to naval operations, with American vessels capturing numerous French
warships. The question the Quasi-War raises for class discussion is whether
Adams overstepped his constitutional authority in the way he handled it. Some
students may indicate that without a declaration of war from Congress, Adams
had no authority to issue orders that the U.S. Navy attack and seize French
ships. Others might point out that although Congress never officially declared
war, it gave Adams, as commander in chief, the statutory authority and means
to take defensive measures that were necessary to protect American interests.
The larger point to be made here is that the Quasi-War illustrates that the
Constitution did not clearly allocate power between Congress and the president
with respect to the control and deployment of military force and the line of
authority between the two branches had to be sorted out in practice over time.
You might advise students that the Alien and Sedition Acts, which Congress
passed and Adams signed in 1798, during the Quasi-War, were prompted by
rumors that there were French spies in the county and a French invasion was
imminent. After outlining the broad contours of the legislation (the Alien Acts
increased the residency requirement for American citizenship and authorized the
president to imprison or deport aliens who were deemed dangerous; the Sedition
Act restricted speech critical of the government), it would be worthwhile to point
out that these laws reflect a dilemma that students will see repeatedly in the
book—how should the country reconcile the inevitable tension that arises in times
of conflict between constitutional freedoms and the interests of national security?
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C h a p t e r 2. J o h n A da m s , 1797-1801
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When discussing the Thomas Nash affair, you might confirm that students
understand that President Adams was accused of interfering with the federal
judiciary when he handed Nash over to the British to be tried and executed,
and that this was why some in Congress called for Adams’s impeachment and/
or censure. Students should be able to see that such calls were the result of
partisan politics for the following reasons. If the decision on Nash was incorrect,
Adams was, at most, mistaken as to the exact contours of his executive powers.
Such a mistake would not be grounds for censuring a president, assuming the
Constitution, which speaks only to impeachment, allows it. Moreover, Adams’s
decision on Nash, even if mistaken, did not rise to the level of “treason, bribery,
or other high crimes and misdemeanors” the conduct that is impeachable under
Article II, Section 4 of the Constitution.
In the Election of 1800, Adams was the first president to lose his reelection bid,
defeated by Thomas Jefferson. Following the election, power changed hands
as a matter of course—Adams departed for home and Jefferson assumed office.
Students should be able to appreciate that the election marked a milestone in
American history—Americans could be confident that our leaders would abide
by the Constitution, that power would be secured through the ballot box, not
violence, and that the country could engage in lively, even contentious, political
debate, but be capable of uniting once the victor was declared.
QUESTIONS FOR DISCUSSION
1. Were you surprised that John Adams only lasted one term as president?
Did his governing style contribute to this?
2. Did Adams over-step his constitutional authority in seeking to handle the
“Quasi-War” and the conflicts between France and England, or was he
simply a victim of politics?
3. Does the Constitution envision that the president, as a general rule,
should be the “sole organ” of government who represents the nation in
the sphere of foreign affairs? [See Justice Sutherland’s opinion in U.S. v.
Curtiss–Wright Corp. (1936) discussed in the chapter on President Franklin
D. Roosevelt].
4. If the Alien and Sedition Acts of 1798 had been challenged in court, would
the laws have survived constitutional scrutiny under the First Amendment?
Why or why not?
5. Did Adams truly violate the separation of powers when he handed Thomas
Nash over to the British to be tried and executed? Were the calls for
Adams’ impeachment and/or censure legitimate, or were they simply the
result of partisan politics?
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C h a p t e r 2. J o h n A da m s , 1797-1801
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6. Like Washington, Adams associated himself with the Federalists, but was
not a full-fledged partisan. Were Washington and Adams the only two
presidents of this type? Would the nation in modern times benefit from a
less partisan chief executive, as the framers may have envisioned?
7. In the election of 1796, Adams was elected president and his political
rival, Thomas Jefferson, was elected vice president pursuant to Article
II, Section 3, because he received the second highest number of votes.
This result would no longer be possible, because the Twelfth Amendment
(1804) requires each member of the Electoral College to cast a separate
vote for president and vice president. Was there any benefit to the original
system, by which the two highest vote-getters became president and vice
president, respectively, regardless of political affiliation?
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8. Adams was the first president to lose his reelection bid. How important was
the peaceful transfer of power in terms of stability for the young nation?
How much credit does Adams deserve for this (i.e. the Revolution of 1800)?
9. Would you rank Adams as a good or bad president?
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